• c



      '-··

                                             Randall   Bolivar:-:#n1i'71~379
                                                    Ellis Unit
                                                   1697 FM 980
                                             Huntsville, Te-5<as 77343 ':

                                                                       May 5, 2015

             Texas Court of Criminal Appeals                                                          vI ;r (!rfK'1.:, f I~ 0 /1').;</J 1.1..
             Clerk of the Court
             P.O. Box 12308, Capitol Station                                                       '/014 o.Eio ooDl :J.oJE J¢ct.5
             Austin, Texass78711

             RE:
                            MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
                                     MOTION FOR EMERGENCY STAY OF PROCEEDINGS

             D~~~    Clerk of   the~court:

                   Enclosed please find the following documents for filing with the C~A~.l~~OiS
             I respectfully request you bring these matters to the courts attention as
             promptly as possible:                                                                          .Abe' Acosta, Clerk
                    1. Motion For Leave To File Petition For Writ of Mandamus; and
                     2. Motion For Emergency Stay of Proceedings.
                   Thank you for your time and consideration. God Bless You!


                                                                       Respectfully Submitted,




                                                                       Randall Bolivar, Pro Se
             cc;
                   Chief Staff Attorney, 13TH Court of Appeals f-       lite....   ~.l."'-T•••;(.Ju•·•n;J '7~1!/-   tJ...':;"/8   06~/ ?.tt>i i:(~~
                   Cameron County D.A.'s Office
      ~   ...·"
•..


                                               CAUSE NO.

                                                           IN THE TEXAS
                                                 COURT OF CRIMINAL APPEALS
                                                        AUSTIN, TEXAS
                  RANDALL BOLIVAR,                              §
                       Realtor                                  §    Relief Sought From Order of
                                                                §    Thirteenth Court~of Appeals
                  vs.                                           §    Cause No~ 13-14-00157-CR
                                                                §
                  THIRTEENTH COURT OF APPEALS,                  §
                         Respondent                             §


                                 MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS


                  TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
                        Comes now Randall Bolivar, Realtor pro se, and. respecfully.moves the Court
                  ·to grant leave to   fil~   a petition for   writ~of    mandamus, pursuant to Rule 72,
                  Texas Rules of Appellate Procedures.
                        Realtor asserts that th8 matters that he intends to raise are extraordinary
                  in Texas Jurisprudence, once he is able to obtain a complete record of which
                  is the primary focus of     ~mis   complaint and request for relief.
                        Wherefore, Realtor prays the Court will GRANT LEAVE.
                                                                            Respectfully Submitted,
                                                                              ;£__/U~
                                                                           Randall Bolivar, Pro Se4
                                                                            Realtor
                                                                           Ellis Unit, TDCJ .# 1719379
                                                                           1697 FM 980
                                                                           Huntsville, Texas 77343
                             CAUSE NO.

                                     IN THE TEXAS
                              COURT OF CRIMINAL APPEALS
                                    AUSTIN, TEXAS
RANDALL BOLIVAR,                           §
     Realtor ·                             §   Relief Sought From Order of
                                           §   Thirteenth Court of Appeals
vs.                                        §   Cause No, 13-14-00157-CR
                                           §
Thirteenth Court of Appeals,               §
     Respondent                            §



                      MOTION FOR EMERGENCY STAY OF PROCEEDINGS


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
      Comes now Randall Bolivar, Realtor pro se, and   re~pectfully   ma~essthis

Honorable Court to STAY the proceedings in Cause No.      13-14-00157~CR   from the
Thirteenth Court of Appeals. In support shows:
      1. Realtor's Appellate Brief is due to be filed in the appellate court on
         or before May 14, 2015.
      2. Realtor has not received a complete copy of the Clerk's Record.
      3. Realtor has filed a motion to abate the appeal in order to supplement
         the record, and have a copy provided to Realtor, and it was denied.
      4. The record is devoid of written findings of fact and conclusions of law
         on the motion to supress statement challenging the voluntariness.
      5. Realtor filed ammbtion to abate.the appeal to enter findings, but it was
         unexplicably dismissed as moot.
      6. Real tor· is incarcerated and has no way::: by which to notify by expedited
         means any other party, but is being notified as promptly as possible.
      7. Realtorohas no ability to exercise ~ts due dilligence be~ond what has
         already been exercised with all parties, at all levels. Wit~o~t the
         emergency stay of proceedings, Realtor would suffer irreparable harm.
      Wherefore, Realtor prays the Court will GRANT the STAY of proceedings.
                                                    Respectfully Submitted,

                                                       ~~
                                                    Randall Bolivar, Pro Se
                                                    Realtor
                                                    Ellis Unit, TDCJ # 1719379
                                                    1697 FM 980
                                                    Huntsville, Texas 77343
                                 CERTIFICATE OF SERVICE

  I, Maria   s.   Rey, certify that a true and correct copy of the above and fore-

  qoing documents were served on opposinq counsel for the State at:

  Cameron County District Attorney's Office         Chief Staff Attorney
                                                    901 Leopard St., 10th Flr.
  964 E. Harrison St.
                                                    Corpus Christi, Texas 78401
  Brownsville, Texas 78520

  Service upon counsel was made by fax, First Class Mail, or hand-delivery.

  SIGNED AND SERVED ON THIS1JDAY OF     ;lljtJ:}


List of Motions:
   Motion .For leave to File Petition For Writ of Mandamus
   Motion For Emergency Stay of Proceedings
I'




                                        Randall Bolivar# 1719379
                                                Ellis Unit
                                               1697 FM 980
                                         Huntsville, Texas 77343

                                                                      May S, 2015

     Texas Court of Criminal Appeals
     Clerk of th= Court
     P. 0. Box 1 2308, Capitol Statdlonr•
     Austin, Texas 78711-

     RE:
                                     PETITION FOR WRIT OF MANDAMUS
     ·c                                                AND
                               EMERGENCY STAY OF APPELLATE PROCEEDINGS

     Dear    Clerk of the Court:

           Enclosed for filing with the Court, please find my PETITION FOR WRIT OF

     MANDAMUS AND EMERGENCY STAY OF APPELLATE PROCEEDINGS.

           I humbly request that this matter be prompty brought to the attention of

     the    ~ourt   due to the time constraints invloved.

           Thank you for your time and consideration. God Bless You!

                                                                   Respectfully Submitted,



                                                                   Randall Bolivar, Pro Se


     cc:
        Chief Staff Attorney, 13TH COurt of Appeals4--\/'1ft riS:2.11i;:.l&i> 1'11-:+1!. 'k11/ os!o GCJOI 'IJ1CI ;t.S(.,
     Cameron County D.A.'s Office
I'   \1




                         CAUSE NO.

                              IN THE TEXAS

                        COURT OF CRIMINAL APPEALS
                              AUSTIN, TEXAS



                         IN RE RANDALL BOLIVAR,
                                 REALTOR

                                     vs.
                      THIRTEENTH COURT OF APPEALS,
                               RESPONDENT



                    APPELLATE CAUSE NO. 13-14-00157-CR
          FROM THE THIRTEENTH COURT OF APPEALS, EDINBURG, TEXAS
                   TRIAL COURT CAUSE NO. 09-CR-2869-A
          FROM THE 107TH DISTRICT COURT, CAMERON COUNTY, TEXAS


                     PETITION FOR WRIT OF MANDAMUS
                                  AND
                EMERGENCY STAY OF APPELLATE PROCEEDINGS


                         RANDALL BOLIVAR, PRO SE
                                 REALTOR
                       ELLIS UNIT, TDCJ # 1719379
                               1697 FM 980
                        HUNTSVILLE, TEXAS 77343
,·
                                   Identity of Parties

REALTOR!:

     Randall Bolivar, Realtor

     Randall Bolivar, Pro Se
     Ellis Unit, TDCJ # 1 719379
     1697 FM 980
     Huntsville, Texas 77343


RESPONDENT:

     Thirteenth Court of Appeals, Respondent

     Chief Staff Attorney, for Respondent
     Nueces County Courthouse
     901 Leopard St., 10th Floor
     Corpus Christi, Texas 78401




                                           ii
                               TABLE OF CONTENTS

Id~ntity    of Parties                                                       ii
Table of Contents                                                           iii
Index of Authorities                                                       iiii   I


Statement of Case                                                             1
Staement of Jurisdiction                                                      2
Issues Presented                                                              3
Statement of Facts                                                            3
Arguement and Authoriti~                                                      4
                                   Issue # 1                                 4'
   Respondent court failed or refu~ed to act in accordance with its mi~isL~~i~
   ministerial duty to ensure Realtor was provided a complete Clerk's
Record on appeal, pursuant to RULE 34~5(a), TRAP, and order from the
   trial court.
                                   Issue # 2                                5
   Respondent failed or refused to act ih accordance with its
   ministerial dutyvto have the trial court enter written findings of
   fact and conclusions of law regarding th~ contested voluntariness of
   Realtor's custodial statement to police, as required under ARTICLE 38.22
   § 6, CCP and WICKER V. STATE, 740 SW2d 779 (CCA 1987); or in the altern~
   ative, order a new hearing on the motion to supress statement.
                                   Issue # 3                                 6
   Respondent dismissed as moot a matter which is, apparent from the ~sco~,1
   record, still a live controversy and needed by Realtor for appellate
   briefing.
Summary of    the~Arguems~t                                                   7
Prayer for Relief                                                             7
Notice of Pro Se Litigants                                                    7
Certification of Service                                                      8
Verification by Affidavit                                                     8
Notice to Interested Parties                                                  8
Ap,Jendix




                                      iii
                               INDEX OF AUTHORITIES
STATUTES:
Article 3B.~2 § 6, cce                                                 .   .2' 3' '5
Rule 25. 2, TRAP ' .                                                               4
Rule 33 .1 , TRAP         ..                                                       4
Rule 3.4. 5, TRAP                                                ..        . 1 ' 3' 4
Rule 52, TRAP      ..                          . .                    .. .          1
TEXAS CONSTITUTION:
ARTICLE 5, Section 5(c)                                                         1' 2


CASE LAW:
AMADOR V. STATE, 221 SW3d 666, 676-77 (CCA 2007) .                              .4
BONHAM V. STATE, 644 SW2d 5,B (CCA 19B3).                                      • 5
DAVIS V. STATE, 499 SW2d 303 (CCA 1973).                                      5' 6
DEMOSS V. GRAIN, 636 F3d 145 (5TH CIR. 2011).                                    6
DYKES V. STATE, 649 SW2d 633,636 (CCA 19B3).                                   • 5
FIGUEROA V. STATE, 473 SW2d 202 (CCA 1971).                                      6
GREEN V. STATE, 906 SW2d 937 (CCA 1995).                                         5
HARRIS CO. APP2~DISt.~H~TGffi~STAL CffiQBIDS,L105~3B,183S~~~.A~~-~6Uatpn1~999). .4
IN RE BENAVIDES, 403 SW3d 370 (Tx. App. SanAAntoriio 2013).                      6
IN RE COLONIAL PIPELINE CO., 96B SW2d 93B (TEX. l99B).                           2
JACKSON V. DENNO, 37B U.S. at 391, B4 S.Ct. at 17BB (1964).                      5
JOHNSN V. QUARTERMAN, 595 F.Supp2d7Y35 (S.D. Texas 2009).                       .7
MANNING V. ENBRIDGE PIPELINES, 345 SW3d 71B (Tx.App. Beaumont 2011).           . 6
McKITTRICK V. STATE, 535 SW2d B73;B76 (CCA 1976).                             5, 6
MENDEZ V. STATE, 135 SW3d 334(CCA 2004).      .   .                              7
NAVISTAR V. VALLES, 740 SW2d 4 (Tx.App. ElPaso 19B7).                       • 4' 6
NEVEU V. CULVER, 105 SW3d 641, 642 (CCA 2003).                                   2
RANGRA V. BROWN, 566 F3d 515 (5TH CIR. 2009).                                   .6
STATE V. DUNBAR, 297 SW3d 777, 7BO (CCA·2009).                                   4
STATE EX REL. HILL\!V. FIFTH COURT OF APPEALS, 34 SWl3d 924, 927 (CCA 2001) .... 2
STATE EX REL. ROSENTHAL V. POE, 98 SW3d 194, 19& (CCA 2003).                   . 2
STATE EX REL. WILSON V. BRIGGS, 171 TEX.CRIM.479, 351 SW2d 892. (1961) . . .    .2
U.S. V. BANKS, 624 F3d 261 (5TH CIR. 2010).          '·                          6
U.S. V. ROBINS0N, 7B F3d 172 (5TH CIR. 1996).                                   .7
UTPA V. DE LOS SANTOS, 997 SW2d 817 (Tx.A~~~ Corpus Christi 1999) ......... ~ .. 4
VANCE V. HATTEN, 508 SW2d 625 (CCA 1974).                                      • 2
WICKER V. STATE, 740 SW~d 779 (CCA19B7).                                   2, 3, 5
WHITEHEAD V. STATE, 130 SW3d 866 (CCA 2004).                                     4




                                      iiii
                           CAUSE NO.

                                       IN THE TEXAS

                              COURT OF CRIMINAL APPEALS

                                    AUSTIN, TEXAS



                               IN RE RANDALL BOLIVAR,
                                       REALTOR

                                           vs.
                            THIRTEENTH COURT OF APPEALS,
                                     RESPONDENT



                        APPELLATE CAUSE NO. 13-14-00157-CR
               FROM THE TIRTEENTH COURT OF APPEALS, EDINBURG, TEXAS

                        TRIAL COURT CAUSE NO. 09-CR-2869-A
               FROM THE 107TH DISTRICT COURT, CAMERON COUNTY, TEXAS



                          PETITION FOR WRIT OF MANDAMUS
                                       AND
                     EMERGENCY STAY OF APPELLATE PROCEEDINGS

TO THE HONORABLE JUDGES OF THE COURW OF CRIMINAL APPEALS:

   Comes now Randall Bolivar, Realtor pro se, in the above-styled and numbered
cause of action and respectfully files this Petition For Writ of Mandamus and
~mergency   Stay of Appellate Proceedings, pursuant to RULE 52 of the Texas Rules
of Appellate   Proc~dure   (TRAP); ARTICLE 5, SECTION 5(c) of the TEXAS CONSTITUTION;
and mandates of this Honorable Court.
   Realtor humbly requests this Honorable Court grant this petition and stay the
appellate proceedings from which this matter arises. In support,,Realtor respec-
tfully shows the Court as follows:
                                STATEMENT OF THE CASE
   Realtor seeks relief from    Respondent's~;Denial   of Appellant's Second Motion
to Abate The Appeal-   S~pplementation    of the Clerk's Record as Ordered by the
Trial Court, in which Realtor sought to have the trial court's cl7rk provide
the Realtor with a complete copy of the entire Clerk's Record pursuant to an
order by the trial court and RULE 34.5 (a), TRAP,
                                         (1 /8)
   Additrnonally, Realtor seeks relief from Respondent's Dismissal as Moot of
Realtor's Appellant's Third Motion to Abate the Appeal- Required Written Find-
ings of Fact and Conclusions of Law, in which Realtor sought to have the trial
court provide written findings of fact and conclusions of law regarding the
contested voluntatiness of his custodial      §~~tement   to police, pursuant to the
mandatory language of ARTICLE 38.22 §6, TEXAS OODE OF CRIMINAL PROCEDURES (CCP),
and WICKER V. STATE, 740 SW2d 779 (CCA 1987).
   Respondent is the Court of Appellate jurisdiction for the Thirteenth District
of Texas which sits in Corpus Christi-Edinburg, Texas.
   Realtor filed the two   motions,v~rna   certified mail no. 7014 0510 0001 2015
1556, and Respondent denied the Second Motion To Abate,        whi~e   dismissing as
moot the Third Motion To Abate, on April 29, 2015. No written order or opinion
were entered by the Respondent. The Appellate Brief is currently due to be filed
on or before May 14; 2015. Hence, Realtor seeks a stay of appellate proceedings.
                             STATEMENT OF JURISDICTION
   In pertinent parts, ARTICLE 5, SECTION 5(c) of the TEXAS CONSTITUTION states:
     '' ... the Coutttof Criminal Appeals, and the Judges thereof shall have the
     power to issue the Writ of Habeas Coipus, and in Criminal matters, the
     Writs of Mandamus ••. "
     "The Court and the Judges thereof shall have the power to issue such other
     Writs as may be necessary to protect its jurisdiction or enfo~ce its judg-
     ments."
   The Court of Criminal Appeals is court of     last~resort    in Criminal matters and
no other Texas court has authority to overrule or circumvent decisions, or dis-
obey mandates. STATE EX REL. WILSON V. BRIGGS, 1J1 Tex. Ctim. 479; 351 SW2d 892
(1961); VANCE V. HATTEN, 508 SW2d 625~(CCA 1974).
   The CCA has jurisdiction in a matter where a Defendant has no "adequate app-
ellate remedy, and therefore [can]     obtain mandamus relief from order." IN RE
COLONIAL PIPELINE CO., 968 SW2d 938 {Tex. 1998).
   An en bane Court wrote:
    "Mandamus relief may be granted if the realtor can demonstrate-that 1) the
    act sought to be compelled is purely .ministerial and 2~'that realtor has
    no other adequate legal remedy. STATErEX REL. ROSENTHAL V. POE, 98 SW3d
    194, 198 (CCA 2003). The ministerial act requirement has been described:
       as a requirement that the realtor have 'a clear right to the relief
       sought' meaning that the relief souhgtEmust be 'clear and indisputable'
       such that it merits are ~~~ygrid dispute' with 'nothing left to the exe-
       rcise of discretion or judgment.'
    Id., quoting STATE EX REL. HILL V. FIFTH COURT OF APPEALS, 34 SW3d 924, .,
    927-28 (CCA 2001 )."NEVEU V. CULVER, 105 SW3d 641, 642 (CCA.2003)(EN BANC).
   Under the facts and circumstances in this case, this matter is properly
                                     (2/8)
,before this Honorable Court, as Realtor has no other adequate appellate remedy.
                                ISSUES PRESENTED
1. Respondent court failed or refused to act in accordance with its ministerial
   duty to ensure Realtor was provided a complet~ Clerk's Record on appeal, pu-
   rsuant to RULE 34.5(a), TRAP, and order from the trial court.
2. Respondent failed or refused to act in accordance with its ministerial duty
   to have the trial court enter written findings of fact and conclusions of
   law regarding the contested voluntariness of Realtor's custodial statement
   to police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE,
   740 SW2d 779 (CCA 1987); or in the alternati~e~ order a new hearing on the
   motion to suppress statement.
3. Respondent dismissed as moot a matter which is, apparent from the record,       G
   still a live controversy and needed by Realtor for appellate briefing.
                               STATEMENT OF FACTS
CLERK'S RECORD:
1. Clerk's Record was filed in the appellate court on or about May   27~   2014,
   consisting of one volume of 130 pages.
2. After abatement, and remand, the trial court ordered the District Clerk to
   supplement the record, to include all filings 1Supp.RR:pp.19and22), and pro-
   vide Realtor with the same.                                 .
3. Clerk filed a Supplemental Clerk's Record on ot about March 18, 2015; how-
   ever, it was filed under the wrong cause number .. (filed in 13-15-00157-CR),
   consisting of 288 pages.
4. Realtor filed his Appellant's Secorid Motion To Abate The Appeal- Supplemen-
   tation of The Clerk's Record as O~dered by The Trial Court, via certified
   mail no. 7014 0510 0001 2015 1556.
5. Realtor filed his Appellant's Notice of Advisory and ·Affidavit in Support
   Thereof, via certified mail no. 7014 0510 0001 2015 1525, notifying Respond-
   ent, Trial Judge, and opposing counsel for the State of the failure or refu-
   sal to provide Realtor with.the complete Clerk's Record as ordered.
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
1. ~ealtor filed a Motion To Suppress The Statement of the Accused(KCR-1:p.12),
   andaa hearing was held on December 2, 2010. (RR-8).
2. Realtor attacked the voluntariness of his statement. (RR-8:p.27).
3. Realtor filed a Post-trial Motion Requesting Findings of Fact and Conclusions
   of Qaw. (Supp.CR-1 :pp. 103 ~nd 125- however, a page filed is missing from
   the record as filed).
4. Realtor initially refused to give a statement and indicated on his Miranda
   Ri©bts Form, that he wanted his attorney present. (RR-8:p.56;RR~28:SX 1).
5. Realtor testified that even after he refu~ed to give a statement and request
   counsel, that detectives continously prompted him to speak with them and give
   a formal statement; which he subsequehtly did out of fear o~ repercussions
   to be felt by his friends whom were arrested with him. (RR-8:pp.43-46).
6. Realtor filed, pro se, Appellant's Third Motion To Abate The Appeal- Requir-
   ed Written Findings of Fact and Conclusions of Law, via certified mail no.
   7014 0510 0001 2015 1556, in the appellate court •
                                     . ( 3/8)
    On April 29, 2015 Respondent DENIED Appellant's Second Motion To Abate, and
 DISMISSED AS MOOT Appellant's Third Motion To Abate.
                                  ARGUMENT AND AUTHORITIES
    Stat~~ory     provisions are mandatory and exclusive, and must be complied with
 in al respects. UTPA V. DE LOS SANTOS, 997 SW2d 817 (Tex. App. CORPUS CHRISTI
1999);   HARRI~    CO. ARRRAISAQ DIST. V. COASTAL LIQUIDS TRANS., L.P., 7 SW3d 183
 (Tex. App. Houston [1st Dist.J 1999).         Additionally,~"A          [court] is presumed to
have acted within [it's] discretion unless the record discloses to the contary;
 It must be a     ~lear   abuse of discretion apparent from the record.'' NAVISTAR V.
 VALLES, 740 SW2d 4 (Tex. App. El Paso 1987).
ISSUES:f1: Respondent court failed or .refused to act in accordance with its
ministerial duty to ensure Realtor was provided a complete Clerk's Record on
appeal, pursuantt~o RULE 34.5(a), TRAP, and order from the trial court.
    As filed, or as provided to the Realtor,         th~   Clerk's Record is devoid of
numerous filings by both parties and orders of the .trial court. Realtor requires
 the entiterrecord in order to review and appeal ''those matters that were raised
,by written motion filed and ruled on before trial.'' RULE 25.2 (a)(2)(A), TRAP.
This is a prerequisite to presenting a complaint. for appellate review. TRAP RULE
 33.1(a). In STATE V. DUNBAR, the Court stated:
      "Rule 33.1 provides that as a prerequisite tp presenting a complaint for
      appellate review, the record must show that the complaint was made to the
      trial court by a specific and timely request, objection, or motion." 297
      SW3d 777, 780 (CCA 2009).
    Indeed, under RULE 34.5(a), TRAP, "the record mustiinclude" the motions and
orders   R~altor    is requesting be supplemented,and providedtto him, under RULES
 34.5(a)(2) and (5). Realtor made a verbal request to the trial. court, which was
 granted, and submitted written designations in accordance wLth RULE                  34~5(c).    r
The Texas Court of Criminal Appeals (CCA) has previously written:
   "As we stated in WHITEHEAD V. STATE, [130 SW3"d 866 (CCA2004)], 1 the record
   may be supplemeDted under appellate rules if something has been omitted, ..•
   It ensures that the record on appeal accurately reflects all of the evidence
   that was seen by, used by, or considered by trial. judge at the time he made
   a ruling ... If the parties have a dispute over what i terns a·re missing from
   the appellate record, or they dispute the accuracy or completeness of thos~
   items, the trial court will resolve that dispute." AMADOR V. STATE, 221 SW~d
   666, 676-77 (CCA 2007).                                                        .
    In the instant case,       R~altor   has disputed the completeness of the record, and
                                                            -   ~·" -~

opposing counsel for the State argued the· recor-d .:was .. lackiling: 1documentation. (see
State's Brief, p .18; filed in COA Causer:No. 13-14-00157-CR). Additionally, Real-
tor intends on raising issues which will have to be reviewed by Respondent und-
er a de novo standard of review. As such, Respondent would be forced to abate
                                     (4/8)
·the appeal and order the supplementation     if those matters are not in the reco-
rd filed. Regardless if they werer filed in the appellate court, RealtorThas
not received the complete record and cannot proceed to prosecute his appeal
with vigor and lawful tenacity without a complete Clerk's Record to document the
dozens of motions filed by parties, trial court's adjudication of motions, and
other matters as necessary. Under e&ther theory, the Realtor is suffering from
undue delay by the Respondent, and possibly inviting further error.
ISSUE 12: Respondent failed or refused to act in accordance with it~ ministerial
duty to h~ve the trial court enter written findings of fact and conclusions of
law regarding the contested~:voluntaiiness of.Realtor's custodial staiement to
police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE, 740 SW2d
779 (CCA 1987); or in the alternative, order a new hearing on the motion to
supress statement.
   It is "apparent from the record" that Respondent failed or refused to act as
requited by law. Pursuant to WICKER V. STATE, supra,          and its progeny, Realtor
is entitled to have the Respondent abate the appeal and order the trial court
to produce written findings of fact and conclusions of law regarding the
motion to suppress,h6r   ab~te   the appeal and   o~der   a new hearing on the motion
to supress. In WICKER V. STATE, the. Court smlidified its position on the requi-
rement of written findings by the trial court:
     "Indeed, we reiterate.our prior.holdings to the effect that ARTICLE 38.22
     § 6, supra, is mandatory in its language and that it requires a trial court
     to file its findings of fact and conclusions of law regarding the voluntar-
     iness of a confession whether or not the defendant objects to the absence
     of such omitted filing. McKITTR1~K V. STATE, supra, at 876; DYKES V. STATE,
     649 SW2d 633, 636 (CCA 1983). The ~rocedure used in the trial court to
     determine the voluntariness of a defendantts confession must ~be;fully
     adequate to insure reliable and clear-cut determination~6f the voluntarin-
     ess of the confession, ~ncluding the resolution of the disputed facts upon
     which the voluntariness may. depend.' JACKSON V. DENNO, 378 U.S. at 391, 84
     S.Ct. at 1788, 12 L.Ed.2d at 924 (1~64)."
   A few years later in GREEN V. STATE, thisi:Honorable Court once again express-
ed its command to Texas trial and intermediate appellate courts on this matter:
     "When ruling on the admissability of a defendant's statements, the trial
     court must 'enter an order stating its conclusions as to whether or not
     the statement was voluntar~ly made, along with specific findings of fact
     upon which the conclusion was based, which order shall be filed among the
     papers of the caus~. 1 Tex.Code Crim. Proc. Ann. art. 38.22, § 6. This'Court
     has held that '[t]he requirements oF Article 38.22, .•• are mandatory and
     require the trial court to file its findings regardless of whether the de-
     fendant does or does not object. 1 BONHAM V. STATE, 644 SW2d 5,8 (CCA 1983)
     (citing McKITTRICK V. STATE, 535 SW2d 873 (CCA 1976); DAVIS V. STATE, 499
     SW2d 303 (CCA11973))." 906 SW2d 937 (CCA 1995).
   The proper action, or remedy, for Respondent to have taken, as conceded by
the State (Supp.RR-1 :p.11; State's BriefA p.22 n. 2), is for the app~al to be
                                      (5/o)
abated to enter written findings. When, like in this case, "no findings are made
to support the ruling of the trial court on the voluntariness issue, as in FIG-
UEROA V. STATE, 473 SW2d 202 (CCA 1971); DAVIS V. STATE, 499 SW2d 303 (CCA 1973)
(opinion on ori~inal submission); McKITTRICK V. STATE, supra, the duty of the
appellate court is clear. The proepr procedure is that the appeal be abated and
the trial judge will be directed to reduce to writing his findings on the disp~­
ted issues surrounding the taking of appellant's        confes~ion."       GREEN   ~t   S78ij~

   Furthermore, absent written findings, Realtor is unable to properly cite the
brief or contest the findings of fact and conclusions of law           reac~ed.

   Additionally,   ~    matter of significant importance is the fact that the State
has stipulated to the proper action and remedy. (Supp.RR-1 :p. 11; State's Brief
p.22 n. 2). A stipulation constitutes a judicial admission, and is conclusive
on the issue adressed, ilihich estops the parties from claiming to the contrary.
MANNING V. ENBRIDGE PIPEt[NES L.P., 345 SW3d 718 Tex. App. Beaumont 2011). An
evidentiary stipulation such as this one is binding on both parties. U.S. V.
                                                                       '    '
BANKS, 624 F3d 261 (5TH CIR. 201 0) ·'·
   Clearly the record shows Respondent         acted arbitarily and in an unreasonable
manner "that is without consideration and in disregard of facts and circumstan-
ces of the case," NAVISTAR, supra, at 6, when it disregarded the concession by
the State, and Realtor's requests      ~nd   entitlementsto written findings of fact
and conclusions of law, supported by Inmate's Declaration,and the record. As
such, the Respondents failure or refusal to require the trial court to                  produc~,

and provide to Realtor, written findings, as well as give no written opinion on
said dismissal as moot, is ,;~ithdub reference to any guiding rules and princip-
les." IN RE BENAVIDES, 403 SW3d 370 (Tex. APP. SAN ANTONIO 2013).
ISSUE 13: Respondent dismissed as moot a matter which is, apparent from the
±ecbrd, still a live controversy and needed by Realtor for appellate briefing.
   A claim is moot when the parties are no longer adverse parties with suffici-
ent lebal interests to maintain the litigation. DEMOSS V. CRAIN, 636 F3d 145
(5TH CIR. 2011). Conversely, a case is not moot as long as a live controversy
exists between atleast one plaintifr and one defendamt. RANGRA V. BROWN, 566
F3d 515 (5TH CIR. 2009).
   Herein, Real tor has san; 1ongoing and live controversy with the State in the
R§spondent's   for~m.    Realtor can not possibily hope to effectively prosecute
his claim(s) in the appellate court without the ministerial duty complained of
being executed.    Abatement of the appeal by Respondent would serve to promote
justice, avoid further prejudice to Realtor, and promote judicial economy.
                                     (6/8)
'   .   '   ~




                                                SUMMARY OF THE ARGUMENT
                   The acts complained of were ministerial as imposed by the exclusive and
                mandatory provisions of the statutes, and binding precedent setforth by this
                Honorable Court. Respondent abused its discretion in acting clearly contary
                to well-settled law, whether that law is derived from statute, rule, or opinion
                of the Court. The duty to be performed was a "systemic requirement," MENDEZ V.
                STATE, 138 SW3d 334 (CCA 2004), and spelled-out with such certainty that nothi-
                ng was left to exercise discretion.
                   Respondent's action was alcllear and preoudicial error of law where no
                adequate remedy ae law exists.
                   These exigent circumstances; due to the importance of the issues raised,
                the limited time before the brief is due,.the further irreparable harm to
                Realtor~from   the underlying   ~rongful   conviction, and certainty that the Respon-
                dent was in error; dictate that a stay of all appellate proceedings be required.
                                                   PRAYER FOR eE[[EF
                   Wherefore, premises considered, Realtor prays this Honorable Court will
                GRANT the Petition For Writ of Mandamus, directing Respondent to:
                  1. Ensure the Realtor is provideR a complete copy of the Clerk's Record;
                   2. Ensure the tri~l court produce and provide written findings of fact
                      and conclusions of law on the motion to supress the statement to the
                      Realtor, or hold a new hearing on the motion to supress the statement
                      and reduce to writing its findings; and
                   3. STAY the appellate proceedings until the above-noted actions are taken
                      Respondent, wherein the appellate time-table will restart anew.
                                                                Respectfully Submitted,



                                                                         Randall Bolivar, Pro Se
                                                                         Realtor
                                                                         Ellis Unit, TDCJ # 1719379
                                                                         1697 FM 980
                                                                       I:Huii'EsViiJ.iJ.§, Texas 77343

                                            NOTICE OF PRO SE LITIGANTS
                   Courts construe pleadings filed by pro se litigants under a less stringent
                standard then those drafted by attorneys; thus, pro se pleadings are entitled
                to a liberal construction that includes all reasonable inferences that can be
                drawn from them. JOHNSON V. QUARTERMAN, 595 F. Supp. 2d 735 (S.D. Tex. 2009'). Pro
                se pleadings must be treated liberally as seeking proper remedy. U.S. V.
                ROBINSON, 78F~3d 172 (5TH CIR. 1996).
                                                           (7/8)
'   '.
                                            CERTIFICATE OF SERVICE

           I, Maria S. Rey, certify that a true and correct copy of the above and fore-

           qoing documents were served on opposing counsel for the State at:
          Cameron County District Attorney's Office            Chief Staff Attorney
           964 E. Harrison St.                                 901 Leopard St., 1DTRl.Rilir.
                                                               Corpus Christi,Texas 78401
          Brownsville, Texas 78520

          Service upon counsel was made by fax, First Class Mail, or hand-delivery.
          SIGNED AND SERVED ON THISliDAY OF       li!J
                                                                                               \




         STATE OF TEXAS             §
                                    §
         COUNTY OF WALKER           §

                                    REALTOR'S AFFIDAVIT IN SUPPORT
         I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. Ellis
         Unit, located in Walker County, Texas, declare under penalty of perjury, with-
         out the United States, that the facts stat~d in the abbve and foregoing petiti-
         on for writ of mandamus are true,,correct and complete pursuant to Title 28
         usc § 1746 (1).
         EXECUTED ON MAY 5, 2015.
                                                               Randall Bolivar, Affiant

                                        NOTICE TO INTERESTED PARTIES

         All concerned and interested parties have ten (10) days to rebut this Affi-
         davit under penalty of perjury, and sworn oath by Notary Public, point-for-
         point,- and to transmit said rebuttal to Affiant USPS Cert. Mail with Return
         Receipt Requested, signed and dated by affiant within ten (10) days of
         receipt by party.




                                                    (8/8)
STATE OF TEXAS         §
                       §
COUNTY OF     WALKER~§



                     REALTOR'S AFFIDAVIT OF CERTIFICATION OF DOCUMENTS
I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. ELLIS
UINT, located in Walker County, TExas, declare under penalty of perjury, with-
out the UNITED STATES, that       the;<~attached   two documents sent fromtithe Thirteenth
COurt of Appeals are the original copies sent to Realtor. Additionally, th=r
facts stated herewith are true, correct and complete pursuant to Title 28
usc 1 746 -(1 ') •

EXECUTED ON May 5, 2015.
                                                                Randall Bolivar, Affiant

                         NOTICE TO INTERESTED PARTIES
All concerned and interested parties have ten day~~to rebut this Affidavit
under penalty of perjury, and sworn oath by Notary Public, and transmit said
rebuttal to Affiant Cert, MAil, RR~, signed by affiant and dated within ten
days of reciept.
CHIEF JUSTICE                                                               NUECES COUNTY COURTHOUSE
                                                                            901 LEOPARD, 10TH FLOOR
  RCGELIO VALDEZ
                                                                            CORPUS CHRISTl, TEXAS 78401
JUSTICES                                                                    361-888-0416 (TEL)
                                                                            361-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA.
                                                                            HIDALGO COUNTY
  GINA M. BENAVIDES
                                                                            ADMINISTRATION BLDG.
                                    (:ourt of      ~peals
  GREGORY T. PERKES
                                                                            100 E. CANO, 5TH FLOOR
  NORA L. LONGORIA
                                                                            EDINBURG, TEXAS 78539
                                                                            956-318-2405 (TEL)
CLERK
  DORIAN E. RAMIREZ              tEbirteentb mtsttict of tEexas             956-318-2403 (FAX)

                                                                            www. txcourts. gov/13thcoa

                                            April 29, 2015

      Mr. Randall Bolivar #1719379                  Hon. Luis V. Saenz
      Ellis Unit                                    District Attorney
      1697 FM 980                                   964 E. Harrison
      Huntsville, TX 77343                          Brownsville, TX 78520-7123
                                                    *DELIVERED VIA E-MAIL*
      Hon. Rene B. Gonzalez
      Assistant District Attorney
      964 E. Harrison Street, 4th Floor .
      Brownsville, TX 78520
      * DELIVERED VIA E-MAIL *

      Re:       Cause No. 13-14-00157-CR
      Tr.Ct.No. 2009-CR-2869-A
      Style:    Randall Bolivar v. The State of Texas

             Pro· Se's third motion to abate the appeal - required written findings of fact and
      conclusions of law in the above cause was this day DISMISSED AS MOOT by this
      Court.                                                            '

                                               Very truly yours,
                                                ~~$. ~~
                                               Dorian E. Ramirez, Clerk

      DER:mrq
c   •


                                                                                 NUECES COUNTY COURTHOUSE
        CHIEF JUSTICE
                                                                                 901 LEOPARD, 10TH FLOOR
          ~QGELIO VALDEZ
                                                                                 CORPUS CHRISTl, TEXAS 78401
                                                                                 361-888-0416 (TEL)
        JUSTICES
                                                                                 361-888-0794 (FAX)
          NELDA V. RODRIGUEZ
          DORI CONTRERAS GARZA
                                                                                 HIDALGO COUNTY
          GINA M. BENAVIDES
                                                                                 ADMINISTRATION BLDG.
          GREGORY T. PERKES
          NORA L. LONGORIA                 QCourt of ~peal~                      100 E. CANO, 5TH FLOOR.
                                                                                 EDINBURG, TEXAS 78539
                                                                                 956-318-2405 (TEL)
        CLERK
          DORIAN E. RAMIREZ             Qi;birtttntb mt~ttitt of Qi;exa~         956-318-2403 (FAX)

                                                                                 www. txcourts. gov/13thcoa

                                                  April 29, 2015

              Mr. Randall Bolivar #1719379                Hon. Luis V. Saenz
              Ellis Unit                                  District Attorney
              1697 FM 980                                 964 E. Harrison
              Huntsville, TX 77343                        Brownsville, TX 78520-7123
                                                          * DELIVERED VIA E-MAIL *
              Hon. Rene B. Gonzalez
              Assistant District Attorney
              964 E. Harrison Street, 4th Floor
              Brownsville, TX 78520
              * DELIVERED VIA E-MAIL *

              Re:       Cause No. 13-14-00157-CR
              Tr.Ct.No. 2009-CR-2869-A
              Style:    Randall Bolivar v. The State of Texas

                    Pro Se's motion to abate appeal - supplementation of the clerk's record as
              ordered by the trial court in the above cause was this day DENIED by this Court.

                                                      Very truly yours,
                                                      ~~·$. 7\~
                                                      Dorian E. Ramirez, Clerk

              DER:mrq
