                                                                                 WR-31,454-03
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 7/17/2015 12:14:26 PM
 July 17, 2015                                                      Accepted 7/17/2015 1:03:11 PM
                                                                                    ABEL ACOSTA
                              No. WR-31,454-03                                              CLERK




           IN THE COURT OF CRIMINAL APPEALS OF TEXAS



                   EX PARTE RODNEY ELNESTO SMILEY


                   On Application for a Writ of Habeas Corpus

                 Trial Court Cause No. C-213-010293-1011284-B
                           213th Judicial District Court
                              Tarrant County, Texas


APPLICANT’S REPLY TO THE BRIEF OF THE TEXAS DEPARTMENT
                  OF CRIMINAL JUSTICE


                                        STATE COUNSEL FOR OFFENDERS

                                        Kenneth Nash, Appellate Chief
                                        State Bar of Texas No. 14811030

                                        Nicholas Mensch
                                        State Bar of Texas No. 24070262
                                        P. O. Box 4005
                                        Huntsville, TX 77342
                                        (936) 437-5252
                                        (936) 437-5279 (fax)
                                        nicholas.mensch@tdcj.texas.gov

                                        Attorney for Applicant
                                         TABLE OF CONTENTS


TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

REPLY ARGUMENTS ............................................................................................. 1

    I.        Whether Applicant’s requested relief, asking to be released to
              mandatory supervision for his theft offense in Dallas County, is
              being asked for the first time in this Court? .............................................. 2

    II.       Whether Applicant’s claims are moot? ..................................................... 4

    III.      Whether the controlling mandatory supervision case may change
              during an inmate’s incarceration? ............................................................. 7

SUMMARY OF THE ARGUMENT ........................................................................ 1

ARGUMENT ............................................................................................................. 2

PRAYER .................................................................................................................. 12

CERTIFICATE OF SERVICE ................................................................................ 13

CERTIFICATE OF COMPLIANCE ....................................................................... 14




                                                             ii
                                      INDEX OF AUTHORITIES


Cases

City of Dallas v. Woodfield
       305 S.W.3d 412 (Tex. App.--Dallas 2005, no pet.) ....................................4, 5

Clark v. Brewer,
      776 F.2d 226 (8th Cir. 1985) ............................................................................5

Ex parte Bohannan,
      350 S.W.3d 116 (Tex. Crim. App. 2011) ........................................................5

Ex parte Brandon,
      No. WR-81,846-01 (Tex. Crim. App. September 17, 2014) (not designated
      for publication) ................................................................................................5

Ex parte Brandon,
      No. WR-81,846-03 (Tex. Crim. App. September 17, 2014) (not designated
      for publication) ................................................................................................5

Ex parte Elliot,
      746 S.W.2d 762 (Tex. Crim. App. 1988) ......................................................10

Ex parte Geiken,
      28 S.W.3d 553 (Tex. Crim. App. 2000) ..........................................................8

Ex parte Keller
      173 S.W.3d 492 (Tex. Crim. App. 2005) ........................................................9

Ex parte Mabry,
      137 S.W.3d 58 (Tex. Crim. App. 2004) .................................................... 9-10

Ex parte Ormsby,
      676 S.W.2d 130 (Tex. Crim. App. 1984) ......................................................10

Ex parte Retzlaff,
      135 S.W.3d 45 (Tex. Crim. App. 2004) ........................................................10



                                                          iii
Ex parte Thompson,
      173 S.W.3d 458 (Tex. Crim. App. 2005) ........................................................9

General Land Office v. OXY U.S.A. inc.,
     789 S.W.2d 569 (Tex. 1990) ...........................................................................5

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
      971 S.W.2d 439 (Tex. 1998) ...........................................................................6

Trulock v. City of Duncanville,
      277 S.W.3d 920 (Tex. App.—Dallas 2009, no pet.) .......................................7

Weinstein v. Bradford,
     423 U.S. 147 (1975).........................................................................................5

Statutes

Texas Code of Criminal Procedure 42.18 § 8(c) (1994) ......................... 4, 9, 10, 11

Texas Government Code § 508.149.......................................................................3, 4




                                                       iv
                              REPLY ARGUMENTS

  I.   Whether Applicant’s requested relief, asking to be released to mandatory
       supervision for his theft offense in Dallas County, is being asked for the first
       time in this Court?

 II.   Whether Applicant’s claims are moot?

III.   Whether the controlling mandatory supervision case may change during an
       inmate’s incarceration?

                       SUMMARY OF THE ARGUMENT

       Contrary to the Texas Department of Criminal Justice’s (“TDCJ”) assertion,

Applicant’s requested relief of being released to non-discretionary mandatory

supervision was requested in the trial court in his application for a writ of habeas

corpus for his theft conviction in Cause No. WR94-02594-U(B). Also, even if this

Court believes Applicant’s claims are moot, this Court should review them under

the “capable of repetition, yet evading review” doctrine. Alternatively, if this

exception does not apply to Applicant’s notice claim, Applicant believes that

mootness should not apply to this Court’s broader question concerning the legality

of TDCJ’s policy. Finally, TDCJ has assumed that Applicant is contending “that –

upon a (hypothetical) favorable DMS vote in 2010 – he would have remained in

TDCJ-CID’s physical custody until he was physically released for the theft

offense,” with this assumption forming the basis of their response to Applicant’s

claims. This assumption is incorrect. The assumption underlying Applicant’s

claims is simply put, the lack of notice along with TDCJ’s policy of not releasing

                                           1
an offender to mandatory supervision until eligible to be released on all mandatory

eligible offenses, has made being released to non-discretionary mandatory

supervision when one becomes eligible illusionary. TDCJ’s policy has also turned

his mandatory supervision offense of theft into a discretionary mandatory

supervision offense in violation of the federal and state constitutional prohibitions

against ex post facto laws, the state constitutional prohibition against retroactive

laws, and the statutory “savings provision.”

      An inmate’s controlling offense for determining mandatory supervision

eligibility is static. To adopt TDCJ’s interpretation that the controlling offense may

change during an inmate’s incarceration would allow TDCJ to continue to engage

in its nefarious conduct of manipulating similarly situated persons like Applicant in

order to prevent those persons from being timely noticed of a review for a

discretionary mandatory supervision eligible offense and then prevent their release

to mandatory supervision even after they become eligible for release.

                                   ARGUMENT

 I.   Whether Applicant’s requested relief, asking to be released to
      mandatory supervision for his theft offense in Dallas County, is being
      asked for the first time in this Court?

      In its brief, TDCJ claims that Applicant requesting he should be released to

mandatory supervision for his theft conviction was raised for the first time in

Applicant’s brief to this Court. See Brief of TDCJ at p. 5, fn. 4, citing to the


                                          2
Tarrant County Supplemental Habeas Clerk’s Record. The TDCJ is flat wrong!

Applicant did raise this requested relief, specifically in WR-31,454-04 in his

application for a writ of habeas corpus for his theft conviction in Cause No. WR94-

02594-U(B). Applicant also requested relief in the form of being released to

discretionary mandatory supervision in WR-31,454-03 in his application for a writ

of habeas corpus for his injury to a child conviction in Cause No. C-213-010293-

1011284-B in Tarrant County, Texas.1 To put it succinctly, Applicant’s requested

relief was raised previously to his original brief in this Court and is properly before

this Court. Applicant’s claim regarding the improper application of Tex. Gov’t

Code §508.149 to his theft offense was also similarly raised in the trial court in

Dallas County and is properly before this Court. In any event, even if this Court

does not believe that Applicant adequately raised this requested relief in the lower

court, Applicant would contend that his briefing addresses this Court’s second

designated issue, something TDCJ does appear to agree with. See Brief of TDCJ at

p. 5, fn. 4.

1
    Applicant has requested release to mandatory supervision for his theft offense out of Tarrant
County in both of his briefs. TDCJ criticizes this requested relief because it would “allow
Applicant to serve the remainder of his injury to a child sentence beyond the reach and control of
both TDCJ-PD and the Board (at least for the sentence).” Brief of TDCJ at 38. Because
Applicant had already pointed out that he was already eligible for discretionary mandatory
release in 2010, Applicant thought it was implicit in his prayer that releasing him to mandatory
supervision on his theft would necessarily include him being released to discretionary mandatory
supervision for the injury to a child as the theft case is Applicant’s holding offense. To avoid
confusion, Applicant will update his request for relief to include release to discretionary
mandatory supervision for his injury to a child case.


                                                3
II.    Whether Applicant’s claims are moot?

       In its brief, TDCJ contends that “[b]ecause Applicant has thrice been

reviewed and denied release to DMS, he has already received his remedy for the

purported delay in conducting the initial DMS vote, and the issue appears to be

moot.” Brief of TDCJ at p. 12. For the reasons stated in his initial briefs, Applicant

disagrees with this assertion and believes his claims are not moot.2 However,

should this Court agree with TDCJ that his claims are moot, Applicant’s claims

would also be cognizable under the “capable of repetition, yet evading review”

doctrine.3 “There are two exceptions to confer jurisdiction regardless of mootness:

(1) the issue is capable of repetition, yet evading review; and (2) the collateral

consequences doctrine.” City of Dallas v. Woodfield, 305 S.W.3d 412, 418 (Tex.

App.—Dallas 2005, no pet.). The doctrine of capable of repetition, yet evading

review, in the context of non-class action suits, is “limited to the situation where

two elements combine: 1) the challenged action was in its duration too short to be

2
    For example, Applicant argued that the notice that has been given is constitutionally
defective because of TDCJ and BPP’s faulty premise that Applicant’s pre-1996 theft case is
governed by Tex. Gov’t Code § 508.149, instead of former Tex. Code of Crim. Proc. 42.18 §
8(c)(1994). Based upon this faulty premise, Applicant has never been given accurate notice as to
his mandatory supervision dates, and he was denied notice and review of his case for over two
years. Subsequent reviews do [not] render this failure to provide notice of his DMS moot as
Applicant is still being harmed by this policy to this day as he has still not been released to
mandatory supervision on his theft case. This, in effect, rendered the notices useless and
deprived Applicant any meaningful opportunity to be heard or reviewed by the BPP for
discretionary mandatory supervision as he has now become eligible for mandatory supervision
and is entitled to immediate release. Applicant’s Brief (WR-31,454-03) at 14.
3
   TDCJ does acknowledge that Applicant’s claim might nevertheless be justiciable under this
doctrine. Brief of TDCJ at 12.

                                               4
fully litigated prior to its cessation or expiration, and 2) there [is] a reasonable

expectation that the same complaining party would be subjected to the same action

again.” Ex parte Bohannan, 350 S.W.3d 116, 119 (Tex. Crim. App. 2011), citing

to Weinstein v. Bradford, 423 U.S. 147, 148-149 (1975). “When determining the

‘evading review’ element, the proper inquiry is whether the challenged activity is

by its very nature short in duration so that it could not, or probably would not, be

able to be adjudicated while fully live.” Woodfield, 305 S.W.3d at 419, citing to

Clark v. Brewer, 776 F.2d 226, 229 (8th Cir. 1985). The first prong should be met

as this case has only been in litigation for a little over a year, and because of the

nature of the initial claims, the duration with which to argue these claims was

relatively short.4 As for the second prong, Applicant is slated to receive another

review for potential release to discretionary mandatory supervision on his injury to

a child offense in December 2015, even though Applicant became eligible for


4
    Applicant must state that a similar issue is pending before this Court in Ex parte Brandon,
No. WR-81,846-02. See General Land Office v. OXY U.S.A. Inc., 789 S.W.2d 569, 571-572
(Tex. 1990) (Two cases pending on the issue present in the case that was determined to be moot
could not meet evading review portion of exception to mootness doctrine). The predicament that
Brandon is similar to Applicant’s; however, the issues presented have been framed as follows:
(1) Did the TDCJ and Board of Pardons and Paroles (“BPP”) violate Applicant’s right of due
process by using the unserved balances of his old felony sentences to determine his discretionary
mandatory supervision release date on his new felony sentence and (2) Did the TDCJ and BPP
violate Applicant’s right of due course by using the unserved balances of his old felony
sentences to determine his discretionary mandatory-supervision release date on his new felony
DWI sentence? Also, this Court denied, without written order, two separate applications filed by
Mr. Brandon that raised identical issues as Applicant’s applications. See Ex parte Brandon, No.
WR-81,846-01 (Tex. Crim. App. September 17, 2014) (not designated for publication) and Ex
parte Brandon, No. WR-81,846-03 (Tex. Crim. App. September 17, 2014) (not designated for
publication).

                                               5
mandatory supervision on his theft case over two years ago. See Affidavit of

Charley Valdez at 3. In effect, Applicant will again be subjected to TDCJ’s policy

whereby his discretionary mandatory supervision has somehow become his

“controlling mandatory supervision case” instead of his mandatory supervision

eligible theft case. The players will all be the same; the Applicant and the Texas

Department of Criminal Justice. The issues will be identical. And if history is any

indication, the result of his review will most likely be the same. Affidavit of

Charley Valdez at 3 (outlining three reviews and three denials).

      Nevertheless, even if this Court does determine that Applicant’s notice claim

is moot as to his discretionary mandatory supervision claim, Applicant contends

that mootness should not apply to this Court’s broader question concerning the

legality of TDCJ’s policy. Applicant is still being harmed by this policy as he is

still currently incarcerated on his mandatory supervision eligible offense, even

though he qualified for release on that offense in May 2013, and never received

any meaningful discretionary mandatory supervision review. Applicant’s

continued incarceration is not “dependent on hypothetical facts, or upon events that

have not yet to come pass.” Patterson v. Planned Parenthood of Houston & Se.

Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998). In other words, a controversy still

exists regarding the legality of TDCJ’s policy that an offender may not be released

to mandatory supervision until eligible to be released on all mandatory eligible


                                         6
offenses. See Trulock v. City of Duncanville, 277 S.W.3d 920, 924 (Tex. App.—

Dallas 2009, no pet.).

III.   Whether the controlling mandatory supervision case may change
       during an inmate’s incarceration?

       In a nutshell, TDCJ contends that Applicant’s position is absurd. TDCJ

assumes that Applicant is contending “that – upon a (hypothetical) favorable DMS

vote in 2010 – he would have remained in TDCJ-CID’s physical custody until he

was physically released for the theft offense,” with this assumption forming the

basis for their response. Brief of TDCJ at 8.5 TDCJ’s assumption is incorrect. As

Applicant stated in his brief:

       for over two years, even though Applicant became eligible for release
       to discretionary mandatory supervision, Applicant did not receive
       notice of that eligibility by TDCJ or BPP and he was denied any
       hearing with the opportunity to present evidence on his behalf to
       obtain discretionary mandatory supervision.6

       ***

       By treating Applicant’s prior 1996 sentence as only eligible for
       discretionary mandatory supervision and basing the subsequent
       notices on that assumption, TDCJ and BPP have created a faulty
       premise that deprives Applicant of his mandatory release that he was
       scheduled to obtain on May 13, 2013. It also denied him any possible

5
  TDCJ’s assumption is actually one of the situations that Applicant wants to avoid with
TDCJ’s illegal policy.
6
    In its brief, the TDCJ attempts to argue that Applicant did not become eligible for
discretionary mandatory supervision review in 2010. Brief of TDCJ at 13. However, TDCJ’s own
inmate tracking system refutes this and clearly states he became eligible for review on September
21, 2010. See Exhibit D, attached to Application for a Writ of Habeas Corpus.


                                               7
      review after he was eligible for discretionary mandatory supervision
      on his injury to a child case for over two years. It is conceivable that,
      if the TDCJ and the BPP continue to engage in this nefarious conduct,
      Applicant will not be released on mandatory supervision on his theft
      sentence (which he was entitled to May 13, 2013) until February 8,
      2016, the date his injury to a child offense discharges.

      Applicant’s Brief (WR-31,454-03) at 11-13.

      Applicant’s assumption isn’t, and nor has he argued, that he should have

been released on “paper” to discretionary mandatory supervision and then remain

in prison until he became eligible for mandatory supervision release on his theft

sentence. The assumption underlying Applicant’s claims is pretty straightforward,

TDCJ and BPP have been playing fast and loose with Applicant’s so-called

“controlling offense” to manipulate the date in which Applicant must be released

to mandatory supervision on this theft offense. The TDCJ and BPP realize that,

because the they failed to take timely action on Applicant’s discretionary

mandatory supervision eligible injury to a child offense, Applicant was entitled to

immediate release on his DMS offense as per Ex parte Geiken, 28 S.W.3d 553, 558

(Tex. Crim. App. 2000), and release on his mandatory supervision theft offense on

May 13, 2013. Simply put, the lack of notice along with TDCJ’s policy of not

releasing an offender to mandatory supervision until eligible to be released on all

mandatory eligible offenses, has made being released to non-discretionary

mandatory supervision when one becomes eligible illusionary. TDCJ’s policy has

also turned his mandatory supervision offense of theft into a discretionary

                                         8
mandatory supervision offense in violation of the federal and state constitutional

prohibitions against ex post facto laws, the state constitutional prohibition against

retroactive laws, and the statutory “savings provision.” Applicant’s Brief (WR-

31,454-03) at 23-24. This is the case here. TDCJ’s brief does not address this

contention.

       TDCJ further contends that from prior to May 13, 2013, Applicant’s

controlling sentence was his mandatory supervision theft offense. Then once

Applicant became “presumptively”7 eligible to mandatory supervision on that theft

case, his controlling offense changed to his discretionary mandatory supervision

offense of injury to child. Based upon this framework, TDCJ analyzes this case

under the current guidelines for mandatory supervision as found under Chapter 508

of the Texas Government Code, and defines “controlling sentence” to mean “the

longest, remaining concurrent sentence for calculating MS or DMS eligibility –

measured at a particular point in time.” Brief of TDCJ at p. 10, fn. 8.8 To support

this proposition, it appears that TDCJ is relying upon Judge Keasler’s concurring

opinion in Ex parte Mabry, 137 S.W.3d 58, 63 (Tex. Crim. App. 2004). Brief of

7
    Despite TDCJ’s claim, there is nothing presumptive about Applicant’s eligibility for
mandatory supervision on his theft case. He is entitled to release on mandatory supervision for
his theft conviction. See Ex parte Thompson, 173 S.W.3d 458, 459 (Tex. Crim. App. 2005), Ex
parte Keller, 173 S.W.3d 492, 495 (Tex. Crim. App. 2005), and Tex. Code of Crim. Proc. 42.18
§ 8(c) (1994).
8
    This conveniently allows TDCJ to ignore the former provisions of Tex. Code of Crim. Proc.
42.18 § 8(c) (1994) and keep Applicant incarcerated beyond the date he achieved mandatory
supervision on his theft case.

                                              9
TDCJ at 36. “When an inmate has multiple convictions, he will have one

conviction which governs his release date, either because it is the most recent,

contains the longest sentence, or has the least amount of time credits.” Ex parte

Mabry, 137 S.W.3d at 63 (Keasler, J., concurring). The holding conviction “is the

conviction that will keep the prisoner in custody for the greatest amount of time.”

Id.

      As stated in his original brief, Applicant’s theft conviction is his holding

conviction. Applicant’s Brief (WR-31,454-03) at p. 17-18. From TDCJ’s brief, it

appears that TDCJ believes that keeping a prisoner in custody only extends to

confinement in the Texas Department of Criminal Justice – Institutional Division.

Brief of TDCJ at 18, citing to Ex parte Retzlaff, 135 S.W.3d 45, 48 (Tex. Crim.

App. 2004). Custody; however, should not, and has not, been so narrowly

construed as to mean solely confinement in TDCJ. This Court has held that persons

on parole are in the legal custody of the State and may use habeas corpus to

challenge their convictions. See Ex parte Elliot, 746 S.W.2d 762 (Tex. Crim. App.

1988); Ex parte Ormsby, 676 S.W.2d 130 (Tex. Crim. App. 1984). Also, according

to Tex. Code of Crim. Proc. 42.18 § 8(c) (1994):

      A prisoner released to mandatory supervision shall, upon release, be
      deemed as if released on parole…The period of mandatory
      supervision shall be for a period equivalent to the maximum term for
      which the prisoner was sentenced less calendar time actually served
      on the sentence. The time served on mandatory supervision is
      calculated as calendar time. Every prisoner while on mandatory

                                        10
      supervision shall remain in the legal custody of the state and shall be
      amenable to conditions of supervision ordered by the parole panel.

      (emphasis added).

      Thus, Applicant’s theft offense is the longest sentence that he is still serving,

and is the conviction that will keep Applicant in custody for the greatest amount of

time as he is not scheduled to completely discharge that sentence until November

2, 2023. Applicant’s Brief (WR-31,454-03) at 18. Because of this, this offense

controls Applicant’s eligibility for mandatory supervision, and his eligibility is

then governed by Tex. Code of Crim. Proc. 42.18 § 8(c) (1994). An inmate’s

controlling offense for determining mandatory supervision eligibility is static. To

adopt the TDCJ’s interpretation that the controlling offense may change during an

inmate’s incarceration would allow the TDCJ to continue to engage in its nefarious

conduct of manipulating similarly situated persons like Applicant in order to

prevent those persons from being timely noticed of a review for a discretionary

mandatory supervision eligible offense and then prevent their release to mandatory

supervision even after they become eligible for release. As stated supra, the lack of

notice along with TDCJ’s policy of not releasing an offender to mandatory

supervision until eligible to be released on all mandatory eligible offenses, has

made being released to non-discretionary mandatory supervision when one

becomes eligible illusionary. TDCJ’s policy has also turned his mandatory

supervision offense of theft into a discretionary mandatory supervision offense in

                                          11
violation of the federal and state constitutional prohibitions against ex post facto

laws, the state constitutional prohibition against retroactive laws, and the statutory

“savings provision.” Applicant’s Brief (WR-31,454-04) at 23-24. This is the case

here. TDCJ’s policy is illegal, and to borrow a term from their brief, absurd.

                                     PRAYER

      Applicant Rodney Ernesto Smiley prays that this grant his Application for a

Writ of Habeas Corpus and order the Texas Department of Criminal Justice and the

Board of Pardons and Paroles to immediately release him on mandatory

supervision from the sentence imposed in Cause No. F-9402594-PU for the felony

offense of Theft of Property and order the Texas Department of Criminal Justice

and the Board of Pardons and Paroles to immediately release him on discretionary

mandatory supervision from the sentence imposed in Cause No. 1011284D for the

felony offense of Injury to a Child. Applicant also prays for such other relief that

this Court may deem appropriate.

                                       Respectfully submitted,
                                       STATE COUNSEL FOR OFFENDERS

                                       /s/ Nicholas Mensch
                                       Nicholas Mensch
                                       State Bar of Texas No. 24070262
                                       P.O. Box 4005
                                       Huntsville, Texas 77342-4005
                                       (936) 437-5252
                                       (936) 437-5279 (fax)
                                       nicholoas.mensch@tdcj.texas.gov


                                         12
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Applicant’s Reply Brief

was served upon opposing counsel noted below, by one or more of the following:

certified mail (return receipt requested), facsimile transfer, or electronic mail (e-

mail), this 17th day of July 2015.

Joseph P. Corcoran
Assistant Attorney General
Supervising Attorney for Non-Capital Appeals
Criminal Appeals Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400/(512) 936-1280 fax
E-mail address: Joseph.Corcoran@texasAttorneyGeneral.gov

Andrea Jacobs
Assistant Criminal District Attorney, Tarrant County
401 West Belknap
Fort Worth, TX 76196-0201
(817) 884-1687/(817) 884-1672 (fax)
E-mail address: coaapellatealerts@tarrantcountytx.gov



                                       /s/ Nicholas Mensch
                                       Nicholas Mensch
                                       Attorney for Applicant




                                         13
                     CERTIFICATE OF COMPLIANCE

     This document complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i) because this brief contains 3227 words.


                                      /s/ Nicholas Mensch
                                      Nicholas Mensch
                                      Attorney for Applicant




                                        14
