.   .   .   .
                     TRIAL COURT NUMBER: 586939



                                                               RECEIVED IN
                               IN THE                    COURT OF CRIMINAL APPEALS
                   TEXAS COURT OF CRIMINAL APPEALS
                            AUSTIN, TEXAS                       APR 16 2015

                           BIRSHAL MITCELL
                               RELATOR



                                 vs.


                    337TH JUDICIAL DISTRICT COURT
                         HARRIS COUNTY, TEXAS
                               RESPEINDE[l.JT         This document contains some
                                                      pages that are of poor quality
                                                      at the time of imaging.
                  PETITION FOR EXTRAORDINARY RELIEF
                                 RE:



                        IDENTITIY OF PARTIES



                           BIRSHAL MITCHELL
                           TDCJ-CID #630503
                      WILLAIM G. McCONNELL UNIT
                     BEE COUNTY, BEEVILLE, TEXAS

                    337TH JUDICIAL DISTRICT COURT
                    HARRIS COUNTY, HOUSTON, TEXAS

                       REAL PARTY IN INTEREST

                "EB" CLERK IN THE 337TH DISTRICT COURT
                             P. 0. BOX 4651
                      HOUSTON, TEXAS 77210-4651
                                        IN THE
                            TEXAS COURT OF CRIMINAL APPEALS
                                     AUSTIN, TEXAS



IN RE                                          §
                                               §
                                               §     NO:
BIRSHAL MITCHELL                               §
        Relator,                               §


                                MOTION FOR LEAVE TO FILE


TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

        COMES NOW, BIRSHAL MITCHELL, Relator in the Above-Styled and Numbered Cause,

and Respectfully presents this, his "Motion For Leave To File"(his enclosed copy

of   his~''Petition   For Extraordinary Relief") pursuant to Tex.R.App.Prod.Roie 72,

and ''Requests" that this Honorable Court grant him permission to proceed with

the "Petition For Extraordinary      Relief~


Submitted on this,     /3   day of April, 201 5.


                                           Respectfully Submitted,




                                           :b.~~~-
                                           Birsha~M~ator Pro Se
                                           TDCJ-CID #630503
                                           William G. McConnell Unit
                                           3001 South Emily Drive
                                           Beeville, Texas 78102




                                               Page 1 of 1
                          INDENTIFICATION OF PARTIES



RESPONDENT
337TH JUDICAL DISTRICT COURT
HARRIS COUNTY, HOUSTON, TEXAS
PRESIDING JUDGE .

.RESPONDENT
 "EB" CLERK IN THE 337TH DISTRICT COURT

.RELAToR
 BIRSHAL MITCHELL, TDCJ-CID #63050'3
 CURRENTLY INCARCERATED IN THE
 TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
 CORRECTIONS INSTITUTIONS DIVISION
 WILLIAM G. McCONNELL UNIT, BEEVILLE, TEXAS


                                1IABLE OF CONTENTS

Identification of Parties----------------------------------------~--~----ii
                  _________________________________________________________ ii
Table of Contents
Table of Authorities----------------~------------------------------------ii
State of the Case--------------------------------------------------------- 1
Mandamus Relief Appropriate------------------------------------------------ 2
Mandamus Jurisdiction--~------------------------------------------------- 3
Ministerial Act/Clear Right to Relief Requirement. __________________________ 3

Conclusion----------------------------------------------------------------- 3
Prayer--------------------------------------------------------------------·· 4
Verification                                                                 4
                                    TABLE OF AUTHORITIES
In re Mata, 212 SW3d 597(Te~.App.-Austin 2006}                                2
In re Hewlett Parkard, 212 SW3d 356(Tex.App.-Austin 2006) ___________________,3
Dickens v. Second Ct. App. 727 SW2d 542, 549                                 .3
State ex rel Hill v. Ct. of App. 5th District, 34 SW3d 924, 927.              3
Stotts v. Wisser, 894 SW2d 366, 367                                           3
Runtion v. Harmon, 827 SW2d 945, 947                                         .3
State ex rel Vance v. Routt, 571 SW2d 903, 907.                               3




                                       ii
                                            IN THE
                               TEXAS COURT OF CRIMINAL APPEALS
                                         AUSTIN, TEXAS


IN RE                                              §
                                                   §
                                                   §           NO: ____________________
BIRSHAL MITCHELL                                   §
        Relator,                                   §



                              PETITION FOR EXTRAORDINARY RELIEF
                                             .RE:


        (1)      MANDAMUS RELIEF TO COMPEL THE TRIAL COURT TO PROPERLY HEAR AND
                 RULE ON RELATOR'S MOTION/REQUEST FOR 11 NUNC PRO TUNC 11 and/or

        (2)      AN INQUIRY INTO 11 WHY 11 THE COURT CLERK OF ·HJE 337TH JUDICIAL
                 DISTRICT COURT MADE THE FINAL DESPOSITION OF THE MATTER IN
                 FRONT OF THE COURT.

TO THE HONORABLES JUSTICES OF THE COURT OF CRIMINAL APPEALS:

        COMES NOW, BIRSHAL MITCHELL, Relator                 P~o   Se, in the Above-Styled and

Number.ed Cause, and Respectfully presents this, Relator's                     11
                                                                                    PETITION FOR

EXTRAORDINARY RELIEF 11 seeking to institute an original proceeding in this

Honorable Court for an issuance of a          11   Writ Of Mandamus 11 and in support of

said Petition, Relator hopes to show the Court the following:

                                     STATEMENT     0~       THE CASE

        Relator was     ar~e~ted   and convicted for the Offense of Aggravated Robbery

in 1991, and the 337th Judicial District Court Judge gave relator Ten (10)

years    11
              Deferred Adjudiciated Probation,         11
                                                            this probation lasted until Relator

failed to uphold his part of the probation by failing to report, and comply

by the roles established by the Court.

        Relator was revoked, and given a Twenty (20) year sentence, and was remanded

to the Texas Department of Criminal Justice - Institutional Division, this

sentence began upon the Court revoking Relator's probatioonin 1998, and TDC




                                              Page 1 of 4
received Relator in 1999, having served 421 days,(1 yr., 1mo., 26:days) in

the county jail.    Relator was in the custody of TDC for 4 years, 3 months

and 18 days before being paroled on October 20th 2003, having completed a

total of 5 years, 5 months and 14 days of the Twenty (20) year sentence.

     On or about.October 20th 2011, Relator was charged with another offense

and ·Relator's parole was revoked.     Relator had completed 8 years and 6 days

on the street totals his Twenty (20) year sentence, combined with what he had

completed flat, Relator had done 17 years, 9 months, and 25 days.

     Relator has been denied his street time by TDC & the BPP due t6 their

retroactive application of Government     Cod~   §§508.149(a) & 508.283, both of

these Sections were "Enacted" on September 1st, 1997, the fact that Relator

violated his probation in 1998, came to TDC in 1999, the original offense date

was January 1991, so the law in effect at the time of tQe offense is in fact

the law that governs the sentence.

     Relator filed with the trial Court on       Ma~ch   3rd 2015 a Motion For Judgment

Nunc Pro Tunc, hoping that the sentencing Court would order TDC & BPP to cor-

rect the sentence to reflect the B. plus ,years that Relator did on the stree

under direct supervision of the Parole Commission.

     On April 2nd   2015~   the Motion sent to the Court was Denied, but it is

clear~y   apparent that it wasn't the Court that denied it, but in fact the Clerk
                                                                I


in the 337th Court itself,(See Attached Exhibit "A").          It appears from the
                                                                I
                                                                I
Exhibit attached, that ''EB" Clerk in the 337 District Court signed off on the

document instead of the Judge of the Court.

                             MANDAMUS RELIEF APPROPRIATE
                                                                I

     Mandamus relief is available only if a trial court clearly abuses it's

discretion, and Relator can show that he has no adequate lremedy by appeal.

In re MATA. 212 SW3d 597(Tex.Apo.-Austin 2006); InrreLEWiN 149 SW3d 727(Tex.




                                      Page 2 of 4
..
     App. -Austin 2004) ; In re HEWLETT PARKARD 212 SW3d 356 (Tex. App >Austin 2006) .

          In the instant case Relator shows by the attached exhibit that not             o~ly


     did the trial fail   ~o   sign off on, and enter an order of denial, the Court

     allowed the Court's Clerk to do it, thus making a Writ of Mandamus necessary

     to correct the defect of the Court's "non-action" in Relator's case.

                                     MANDAMUS JURISDICTION

          Mandamus is an Extraordinary Writ and it's issuance isn't a matter of Law

     or Right, but rests in the sound discretion of the Court.          DICKENS   v~   SECOND CT.

     OF APPEALS, 727 SW2d 542, .549.     To be entitled to Mandamus Relief, Relator            ~ust


     conclusively establish two requirements; 1) There must be no other adequate

     remedy; and 2) Under the relevant facts and law, the act sought to be compelled

     is purely ministerial.      See STATE ex rel. HILLV.   CT~   OF APPEALS FOR THE 5TH-

     DISTRICT. 34 SW3d 924; 927; STOTTS V. WISSER, 894 SW2d 366, 367; RUNTION             v~


     HARMON, 827 SW2d 945, 947; STATE ex rel. VANCE if. ROUTT, 571 SW2d 903, 907.

     Based upon legal requirements Relator will show.

                    MINISTERIAL ACT/CLEA~ RIGHT TO RELIEF REQUIREMENt

          Relator submits that based on the attached Exhibit, Relator hopes that he

     is entitled. to some relief by this Court.     The relief sought herein is simply

     an order to the 337th Judicial District Court to review the Motion Relator has

     before it, and rule on it as Relator had sought in the first place, instead of

     the Court allowing it's in Court Clerk to sign off on, as the Exhibit clearly

     indicates.

                                           CONCLUSION

          Relator has tried to present to this Court the facts of his case, and
                                                        I
     claim.   All Relator is trying to seek is the proper procedure of the Court to

     hear a Motion, Rule on the Motion, and Enter an Order on the Motion, signed by

     the Presiding Judge.      Relator relies solely on this Court for relief sought,

     and a correction of the "Clerk's" & "Court's" abuse of discretion.



                                             Page 3 of 4
.   '
                                              PRAYER

             WHEREFORE, PREMISE CONSIDERED, Birshal Mitchell, Relator in the Above-

        Entitled and Numbered Cause, Respectfully Prays that this Honorable Court will

        "GRANT" such relief to which Relator might be entitled.    So Moved and Prayed

        that this "Petition For Extraordinary Relief" be "GRANTED'!   Relator further

        Prays for such relief, General or Special at Law or Equity, which this Honorable

        Court might deem Just, Proper, and   Eq~itable.


        Executed on this,   /~   day of April, 2015.

                                                Respectfully Submitted,




                                               (f~~
                                                BirSh81Mithell,R8l8tOI'PI'O
                                                TDCJ-CID #630503
                                                William G. McConnell Unit
                                                3001 South Emily Drive
                                                Beeville, Texas 78102



                                           VERIFICATION

             I, Birshal Mitchell, TDCJ-CID #630503, being incarcerated at the William

        G. McConnell Unit, Bee County, Beeville, Texas, declare under penalty of perjury

        that I am the Relator in the above and foregoing document.    I have read and

        understand said document, and the Factual allegations of same and find that

        they are True and Correct to the best of my knowledge.

        Executed on   this,/~    day od April, 2015.




                                                Birshal Mltchell, Relator Pro Se
                                                TDCJ-CID # 630503




                                             Page 4 of 4
j   ,

                                           CHRIS DANIEL
                                     HARRIS COUNTY DISTRICT CLERK
                                                                                                    Direct Dial Line:



    BIRSHAL MITCHELL
    TDC NO. 630503
    MCCONNEL UNIT
    30018. EMILY DR.
    BEEVILE TEXAS 78102

    Memonmdur.;. :·esponse    t~   correspondence.re(,',eived:        03/2~/.~!tl~


    Re: Cause No(s) 586939.

    Dear BIRSHAL MITCHELL,

    ~   Your motion/request NUNC PRO TUNC was filed with the District Clerk and on 337 ·
        the Court:
                                                           l
         D   Took no action         [gl    Denied your Motion/Request               D     Granted your motion/request

         D   Took action            D      Advised atton.ey of record               D     Other



    D    Other:




                    P.O. Box 465 I •      HOUSTON, TEXAS   772 I 0-465 I •   (7 I 3) 755-5749
