                                                                                WR-83,924-01




                         No. ________________________

  EX PARTE                                                              RECEIVED
                                                                 COURT OF CRIMINAL APPEALS
                                                                        9/22/2015
  TIMOTHY WADE MITLEFF,                                            ABEL ACOSTA, CLERK


      Applicant

                  IN THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      Comes now TIMOTHY WADE MITLEFF, Applicant, and files this Petition

for Writ of Habeas Corpus. In support, Applicant shows the Court the following:

                                         I.

      Applicant is currently being illegally restrained of his liberty due to an order

entered by the District Judge of the 8th Judicial District Court, The Honorable

Eddie Northcutt, Respondent.

                                         II.

      On Friday, September 18, 2015, Respondent quadrupled Applicant’s bail.

Previously, Respondent found Applicant to be indigent, and Respondent has never

found that Applicant ever knowingly violated any court order while he was out on

bail. As set forth below, Respondent’s order raises a serious constitutional due

process issue – namely, Applicant’s right to prior, meaningful notice.

Petition for Writ of Habeas Corpus                                             Page 1
                                        III.

      Applicant is charged by indictment with Assault Family Violence/Impede

Breath. See TEX. PEN. CODE §22.01(b)(2)(B). According to the indictment, a

certified copy of which is attached hereto as Exhibit A, Applicant caused “bodily

injury to ALISHIA MITLEFF” on or about “the 29 th day of March, 2015.”

According to the indictment, Ms. Mitleff is “a member of [Applicant’s] family.”

Ms. Mitleff is Applicant’s wife.

                                        IV.

      According to records from the Sheriff’s Office, Applicant was released on

$25,000 bail on March 31, 2015. A certified copy of the bail bond is attached

hereto at Exhibit B.

                                         V.

      Exhibit B contains no provision that prohibits Applicant from

communicating or even living together with his wife.

                                        VI.

      Following his release on bail Applicant resumed living with his wife.

During this time Respondent heard no evidence of any untoward activity by

Applicant – no threats, no calls to law enforcement about him, etc. – at any time.



Petition for Writ of Habeas Corpus                                            Page 2
                                       VII.

      The Office of the District Attorney discovered that Ms. Mitleff and

Applicant had resumed living together following Applicant’s release on bail. On

September 2, 2015 – i.e., more than five months after Applicant had been released

on bail -- the State served and presented to Respondent a document titled Motion

to Add a Condition to Defendant’s Bond, a certified copy of which is attached

hereto as Exhibit C. In the motion the State asks Respondent to enter an order

prohibiting Applicant from having any contact with his wife, never mind the five

months that the two had been living together since Applicant’s release on bail.

                                       VIII.

      Respondent entered an order granting the State’s motion referenced in

Paragraph VII supra. See “Order Adding Bond Conditions,” a certified copy of

which is attached hereto as Exhibit D. Respondent entered this order on

September 2, 2015.

                                        IX.

      On September 2, 2015 Respondent verbally instructed the State to serve

Applicant by hand with Exhibit D. Respondent also wrote the following at the

bottom of Exhibit D -- “To be served by law enforcement.”



Petition for Writ of Habeas Corpus                                           Page 3
                                       X.

      On September 18, 2015 law enforcement appeared before Respondent and

testified that although they had made about seven attempts, they had been unable

to locate and serve Applicant with Exhibit D.

                                       XI.

      Applicant eventually did receive Exhibit D. Applicant received Exhibit D

on September 18, 2015. That is because Applicant was in court on September 18,

2015. Applicant was in court in compliance with an order that he had previously

received from Respondent. See document titled Appearance and Announcement

Form, dated August 21, 2015, a certified copy of which is attached hereto as

Exhibit E, which required Applicant to appear in court on September 18, 2015.

                                      XII.

      On September 9, 2015, the State filed a document titled Motion to Hold

Bond Insufficient and Increase Bond, a certified copy of which is attached hereto

as Exhibit F. On page 2 of Exhibit F, the State asks Respondent to increase the

$25,000 bail bond to $100,000.

                                      XIII.

      On September 18, 2015 Respondent held an evidentiary hearing on the

record on the State’s motion referenced in Paragraph XII supra.
Petition for Writ of Habeas Corpus                                         Page 4
                                       XIV.

      After hearing the evidence, Respondent stated from the bench that he

believed Applicant had been aware that law enforcement had been trying to serve

him with Exhibit D, and that Applicant had been evading service. Respondent

then stated on the record that he lacked “confidence” in Applicant’s willingness to

follow orders.

                                       XV.

      Respondent granted the State’s motion to quadruple Applicant’s bond –

specifically, from $25,000 to $100,000. A certified copy of document titled Order

Setting Bond is attached hereto as Exhibit G.

                                       XVI.

      Respondent entered the order referenced in Paragraph XV supra --

             A.     EVEN THOUGH Respondent had previously made a

      written finding that Applicant was indigent. See certified copy of

      document titled Affidavit of Indigence, attached hereto as Exhibit H

      at page 3.

             B.     EVEN THOUGH Applicant had appeared in court on

      Friday, September 18, 2015 in compliance with a prior order entered

      on August 21, 2015 by Respondent. See Exhibit E (“Appearance and
Petition for Writ of Habeas Corpus                                           Page 5
      Announcement Form”).

             C.     EVEN THOUGH before September 18, 2015 Applicant

      had complied with at least two (2) prior orders from Respondent

      requiring him to appear in court. See Exhibit I, which contains two

      (2) documents, both of them titled Appearance and Announcement

      Form, which Respondent entered on the following dates -- July 10,

      2015, and August 7, 2015, respectively.

             D.     EVEN THOUGH the trial court’s file contains no

      evidence that Applicant had ever failed to appear in court pursuant to

      any order entered by Respondent.

             E.     EVEN THOUGH Respondent heard no evidence of any

      untoward or nefarious conduct by Applicant. See and compare Ex

      parte Beason, 1993 Tex. App. LEXIS 2341 (Tex. App. – Houston [1st

      Dist.] Aug. 23, 1993, no writ) (held, amount of bail was excessive,

      where among other things there was no evidence of threats by

      appellant against others).

             F.     AND EVEN THOUGH during the September 18, 2015

      hearing neither Respondent nor the State had identified a single

      authority or source – no statute, no court case (published or
Petition for Writ of Habeas Corpus                                             Page 6
      otherwise), no court rule, and no bond condition – that Applicant had

      violated during the five-plus months while he was out on bail.

                                       XVII.

      “The writ of habeas corpus is the remedy to be used when any person is

restrained in his liberty." Ex parte Robinson, 641 S.W.2d 552, 553 (Tex. Crim.

App. 1982) (citing statute). See e.g. Ex parte Clear, 573 S.W.2d 224 (Tex. Crim.

App. 1978)(writ of habeas corpus used to challenge increase in bail).

      In this case, Applicant may use a pretrial writ, as opposed to an

interlocutory appeal, to assert his constitutional protections with respect to bail.

Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014), followed in, Vanhalst v.

State, 2015 Tex. App. LEXIS 8917 (Tex. App. – Texarkana Aug. 26, 2015). See

also e.g. Ex parte Keller, 595 S.W.2d 531 (Tex. Crim. App. 1980).

                                      XVIII.

      One constitutional protection is the right to due process, and one component

of due process is fair notice. This Court made this plain when it quoted the U.S.

Supreme Court on what due process means. See Hunter v. State, 1985 Tex. Crim.

App. LEXIS 1726 (Tex. Crim. App. Oct. 23, 1985)(quoting Cleveland Bd. Of

Educ. v. Loudermill, 470 U.S. 532 (1985), and Matthews v. Eldridge, 424 U.S. 319

(1972)).

Petition for Writ of Habeas Corpus                                            Page 7
                                        XIX.

      Meaningful, proper notice is conspicuously absent here. Before September

18, 2015, and even if all facts are construed in Respondent’s favor, Applicant’s

only source for learning that the conditions of his bond may have changed does

not come from any agent of the State. Rather, Applicant’s only alleged source

comes from the proverbial grapevine.

      If logic is any guide, getting wind that some change is afoot in one’s bond

conditions, even if true, does not satisfy any notion of due process. See and

compare Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004)(held,

written notice that an inmate’s parole will be reviewed at some unspecified time in

the future, coupled with a request that inmate submit relevant materials "as soon as

possible," was constitutionally deficient notice).

      Applicant’s level of notice, assuming for argument’s sake only there was

any, would not even satisfy due process for a civil case. See e.g. Wilson v. Dunn,

800 S.W.2d 833, 836 (Tex. 1990) ("Actual notice to a defendant, without proper

service, is not sufficient to convey upon the court jurisdiction to render default

judgment against him."). See also e.g. Grasz v. Grasz, 608 S.W.2d 356, 358 (Tex.

Civ. App. – Dallas 1980, no writ) (“mere notice that one has been sued does not

obligate the defendant to appear and answer”). A fortiori, Respondent’s apparent

Petition for Writ of Habeas Corpus                                            Page 8
reliance on the proverbial grapevine, and nothing more, as the basis for

quadrupling Applicant’s bond cannot possibly satisfy constitutional due process in

a case where Applicant’s liberty is at stake.

                                         XX.

      Applicant was together with his wife -- without incident -- for more than

five months before Respondent entered the Order Adding Bond Conditions,

attached as Exhibit D, on September 2, 2015. This is unremarkable and should

cause no alarm, especially when no agent of the State ever told Applicant and his

wife they could not do this.

      If, more than five months after the fact, Respondent decides to enter an

order upending this unremarkable arrangement and requiring Applicant to separate

from his wife – indeed, requiring Applicant not even to communicate with his wife

– then Applicant should be able to rely on something more formal, more certain,

and more concrete, than the rumor mill.

                                        XXI.

      Texas state law mandates that bail cannot to be used as an instrument of

oppression. TEX. CODE CRIM. P. art. 17.15(2). Unfortunately, that is the result of

Respondent’s Order Setting Bond (Exhibit G) entered on September 18, 2015.

Quadrupling Applicant’s bail because Applicant may have not followed up on
Petition for Writ of Habeas Corpus                                          Page 9
stray remarks that he may or may not have heard from others, none of whom are

even alleged to be agents of the State, falls far short of any serious notions about

constitutional due process.

                                       XXII.

      Respondent’s Order Setting Bond -- entered on September 18, 2015, and a

certified copy of which is attached hereto as Exhibit G -- violates the Fifth and

Fourteenth Amendments to the U.S. Constitution, as well as Article One, Section

13 of the Texas Constitution, because Applicant failed to receive meaningful

notice.

      WHREFORE, Applicant prays that this Court grant this application for writ

of habeas corpus and that this Court order Applicant discharged from the illegal

restraint he is currently suffering.

Dated: September 21, 2015

                                               Respectfully submitted,

                                               By: __/s/ Wade A. Forsman_
                                               Wade A. Forsman
                                               State Bar No. 07264257
                                               P.O. Box 918
                                               Sulphur Springs, TX 75483-0918
                                               903.689.4144 East Texas
                                               972.499.4004 Dallas/Fort Worth
                                               903.689.7001 Facsimile
                                               wade@forsmanlaw.com
Petition for Writ of Habeas Corpus                                          Page 10
                                             Attorney for Applicant,
                                             Timothy Wade Mitleff

                                     Declaration

      Pursuant to section 132.001 of the Civil Practice and Remedies Code, my

name is Wade A. Forsman, and I am the appointed attorney for the Applicant,

Timothy Wade Mitleff. My date of birth is June 14, 1058, and my work address is

P.O. Box 918, Sulphur Springs, Hopkins County, Texas 75483-0918, United

States of America. Executed in Hopkins County, State of Texas, on this the 21st

day of September 2015.

                                            /s/ Wade A. Forsman
                                       ___________________________
                                            Wade A. Forsman


                             CERTIFICATE OF SERVICE

      This is to certify that on September 21, 2015, I served a true and correct

copy of the above and foregoing Petition for Writ of Habeas Corpus by email on

Matthew Howard Harris, Assistant District Attorney, at 114 Main Street, Sulphur

Springs, Texas 75482.

                                                   __/s/ Wade A. Forsman_
                                                   Wade A. Forsman



Petition for Writ of Habeas Corpus                                          Page 11
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
