                                                                                 WR-83,501-01
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 6/25/2015 12:42:33 PM
                                                                    Accepted 6/25/2015 4:34:40 PM
                                                                                    ABEL ACOSTA
  IN THE COURT OF CRIMINAL APPEALS OF TEXAS                                                 CLERK

                                                                   RECEIVED
                                                            COURT OF CRIMINAL APPEALS
                              No. _______________                  6/25/2015
                                                              ABEL ACOSTA, CLERK


IN RE MATHEW PAYAM SHALOUEI,
                           Relator

        ______________________________________________________________

        RELATOR’S MOTION FOR LEAVE TO FILE
               WRIT OF MANDAMUS
        ______________________________________________________________

             _____________________________________________________

            From the First Court of Appeals, Houston, Texas, denying
            mandamus relief in Cause Number 01-15-00555-CR from
              an order of the 263rd District Court of Harris County,
               Texas, Honorable Jim Wallace presiding in Cause
                         Numbers 1411883 & 1437307
             _____________________________________________________




Jerome Godinich, Jr.                             R. Scott Shearer
TBA No. 08054700                                 TBA No. 00786464
917 Frankilin, Suite 320                         917 Franklin, Suite 320
Houston, TX 77002                                Houston, TX 77002
(713) 237-8388                                   (713) 254-5629
(713) 224-2889 FAX                               (713) 224-2889 FAX
JGodinich@AOL.com                                ShearerLegal@Yahoo.com

Attorney for Relator                             Attorney for Relator
                                                 (on writ and mandamus only)


                                                 June 25, 2015
TO THE HONORABLE COURT OF CRIMINAL APPEALS:


      RELATOR, MATHEW PAYAM SHALOUEI, requests that this Court grant

leave to file the attached writ of mandamus directed to Respondent, the Honorable

Jim Wallace, who is the presiding judge of the 263rd district court of Harris County,

Texas. This petition for writ of mandamus results from Respondent’s failure to issue

a pre-trial writ of habeas corpus filed on behalf of Relator and assigned cause number

1437307.

      Relator argues that, (1) Respondent had a ministerial, mandatory, and non-

discretionary duty to issue the writ; and (2) Relator has no adequate remedy at law

because it is well settled that a defendant may not appeal when a judge refuses to

issue a writ of habeas corpus.




                       Expedited Consideration Requested



      Shalouei requests expedited consideration of his petition by the Court. The

order he is challenging in this proceeding allows a criminal prosecution to proceed

which is currently set for jury selection in Respondent’s court on June 26, 2015 with

trial on the merits scheduled for June 29, 2015.     By separate pleading, Shalouei




                                          2
seeks a stay of that trial pending the Court’s disposition of his motion for leave to

file and the instant petition for a writ of mandamus.


                                                    Respectfully submitted,


                                              By:   /s/ R. SCOTT SHEARER
                                                    R. Scott Shearer
                                                    TBA No. 00786464
                                                    917 Franklin, Suite 320
                                                    Houston, Texas 77002
                                                    (713) 254-5629
                                                    (713) 224-2889 FAX
                                                    ShearerLegal@Yahoo.com

                                                    Attorney for Relator


                                                    June 25, 2015




                                          3
  IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                              No. _______________


IN RE MATHEW PAYAM SHALOUEI,
                           Relator

        ______________________________________________________________

          RELATOR’S EMERGENCY MOTION FOR
                TEMPORARY RELIEF
        ______________________________________________________________

             _____________________________________________________

            From the First Court of Appeals, Houston, Texas, denying
            mandamus relief in Cause Number 01-15-00555-CR from
              an order of the 263rd District Court of Harris County,
               Texas, Honorable Jim Wallace presiding in Cause
                         Numbers 1411883 & 1437307
             _____________________________________________________




Jerome Godinich, Jr.                             R. Scott Shearer
TBA No. 08054700                                 TBA No. 00786464
917 Frankilin, Suite 320                         917 Franklin, Suite 320
Houston, TX 77002                                Houston, TX 77002
(713) 237-8388                                   (713) 254-5629
(713) 224-2889 FAX                               (713) 224-2889 FAX
JGodinich@AOL.com                                ShearerLegal@Yahoo.com

Attorney for Relator                             Attorney for Relator
                                                 (on writ and mandamus only)


                                                 June 25, 2015

                                       4
TO THE HONORABLE COURT OF CRIMINAL APPEALS:


      RELATOR, MATHEW PAYAM SHALOUEI, requests that this Court issue

a writ of mandamus directed to Respondent, the Honorable Jim Wallace, who is the

presiding judge of the 263rd district court of Harris County, Texas. This petition for

writ of mandamus results from Respondent’s failure to issue a writ of habeas corpus

filed on behalf of Relator and assigned cause number 1437307.

      Relator argues that, (1) Respondent had a ministerial, mandatory, and non-

discretionary duty to issue the writ; and (2) Relator has no adequate remedy at law

because it is well settled that a defendant may not appeal when a judge refuses to

issue a writ of habeas corpus.



      1.     The Respondent had a ministerial duty to issue the writ of habeas
             corpus. Relator has a clear right to the relief sought.


      In the recent case of In re Tyrone Allen, this Court set out the current standard

to be applied in mandamus cases. See In re Tyrone Allen, Nos. WR-82, 265-01,

WR-82, 265-02 (Tex. Cr. App. May 13, 2015). Mandamus relief is appropriate only

when a relator establishes (1) that he has no adequate remedy at law to redress his

alleged harm, and (2) that what he seeks to compel is a ministerial act, not a

discretionary or judicial decision. A relator satisfies the ministerial act component

when he can show that he has a clear right to the relief sought. “A clear right to
                                          5
relief is shown when the facts and circumstances dictate but one rational decision

'under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case

law sources), and clearly controlling legal principles.’” A ministerial act, by its

nature, does not involve the use of judicial discretion; it must be positively

commanded and so plainly prescribed under the law as to be free from doubt. While

a trial court has a ministerial duty to rule upon a properly filed and timely presented

motion, it generally has no ministerial duty to rule a certain way on that motion. It

is proper to order a court to rule a particular way only when the law invoked is

“definite, unambiguous, and unquestionably applies to the indisputable facts of the

case.” In re Tyrone Allen, Nos. WR-82, 265-01, WR-82, 265-02 (Tex. Cr. App. May

13, 2015); see State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Cr. App.

1994) (orig. proceeding) (an act is ministerial when the, “law clearly spells out the

duty to be performed with such certainty that nothing is left to the discretion or

judgment.” While mandamus is not a substitute for appeal, it may be used to correct

judicial action “that is clearly contrary to well-settled law, whether that law is

derived from statute, rule, or opinion of a court.” Id.

      In a habeas corpus proceeding, “there is a distinction between the issuance of

a writ of habeas corpus and the granting of relief on the claims set forth in an

application for that writ.” Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Cr. App.

1991). The writ is defined as an order issued by a court or judge of competent

                                           6
jurisdiction, directed to anyone having a person in his custody, or under his restraint,

commanding him to produce such person, at a time and place named in the writ, and

show why he is held in custody or under restraint. TEX. CRIM. PROC. CODE ANN. art.

11.01. In other words, the writ in a habeas corpus proceeding is merely the formal

order securing the presence of the person in custody.

      A court of appeals’ jurisdiction over appeals of pre-trial habeas matters is

limited to review of the trial court’s written order ruling on the merits of the

application. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App. 1991); Ex

parte Wiley, 949 S.W.2d 3, 4 (Tex. App. - Fort Worth 1996, no pet.). When a hearing

is held on the merits of an applicant’s claim and the court subsequently rules on the

merits of that claim, the losing party may appeal. Ex Parte Hargett, 819 S.W.2d

866, 868 (Tex. Cr. App. 1991).

      In the present case, the Respondent issued a written order denying issuance of

the writ. (Exhibit 2, 4). An examination of the record reveals that the trial court

denied issuance of the writ without hearing evidence or argument regarding

Relator’s claims, and without expressing an opinion on the merits of those claims.

Because the trial court did not consider and resolve the merits of appellant’s habeas

corpus application, Relator could not appeal to the court of appeals.

      It is beyond question that the Respondent had a duty to issue the writ. Texas

district courts have constitutional and statutory authority to issue writs of habeas

                                           7
corpus. TEX. CONST. art. V, §8; TEX. GOV’T CODE ANN. §24.011; TEX. CRIM. PROC.

CODE ANN. art. 11.05; Ex parte Hargett, 819 S.W.2d 866, 867 (Tex. Cr. App. 1991).

The Texas Constitution provides that the writ of habeas corpus is a “writ of right.”

TEX. CONST. art. I, §12. The Texas Code of Criminal Procedure further provides

that it is the duty of a district court, “upon proper motion, to grant the writ under the

rules prescribed by law.” TEX. CRIM. PROC. CODE ANN. art. 11.05. The writ “shall

be granted without delay by the judge or court receiving the petition, unless it be

manifest from the petition itself, or some documents annexed to it, that the party is

entitled to no relief whatsoever.” TEX. CRIM. PROC. CODE ANN. art. 11.15. “Where

one entitled to a writ of habeas corpus makes proper application for it to the proper

court having jurisdiction, said application conforming to all the statutory

requirements and probable cause being shown, the writ of habeas corpus cannot be

denied to the relator, for it then becomes a constitutional right. Neither can it be

denied where the granting of it is made an imperative duty by statute.” Click v. State,

118 Tex.Crim. 404, 407-408, 39 S.W.2d 39, 41 (1931). Relator has complied with

the requirements for such petitions. See TEX. CRIM. PROC. CODE ANN. art. 11.14.

Judge Wallace had a mandatory duty to issue the writ of habeas corpus returnable in

Harris County, to let the writ be served upon the sheriff of Harris County, and to

timely to hear the merits of Relator’s complaint. See TEX. CRIM. PROC. CODE ANN.

arts. 11.05, 11.08, 11.10, 11.11, 11.27, 11.31, 11.40.

                                           8
      2.     Relator has no adequate remedy at law.



      Respondent denied issuance of the writ on the grounds that the Respondent’s

claim is not cognizable on a pre-trial writ of habeas corpus. (Exhibit 3). It is

important to note that Relator is not asking the Respondent to rule a certain way in

his case. There is a distinction between the issuance of a writ of habeas corpus and

the granting of relief on the claims set forth in an application for that writ. Ex parte

Hargett, 819 S.W.2d 866, 869 (Tex. Cr. App. 1991). An applicant cannot appeal

from a trial court’s refusal to issue or grant a writ of habeas corpus, but may appeal

the denial of relief on the merits of the application. See Hargett, 819 S.W.2d at 868.

       At this juncture, Relator is only asking for the Respondent to issue the writ

according to recognized process and to make a ruling on the merits. See Ex parte

McCullough, 966 S.W.2d 529, 531 (Tex. Cr. App. 1998) (“The Court of Appeals

and the State have confused cognizability with jurisdiction. Certain claims may not

be cognizable on habeas corpus, i.e., they may not be proper grounds for habeas

corpus relief. However, if the district court denies relief, regardless of the underlying

claims for the relief sought, the applicant may appeal.”); O'Donniley v. Golden, 860

S.W.2d 267, 269 (Tex. App. - Tyler 1993, orig. proceeding) (“While it is a basic

premise that an appellate court lacks the power to compel a trial judge to do a

                                           9
particular act involving or requiring discretion on his part, this Court is empowered

to order a trial judge to exercise his discretion in some manner.”); see also In re

Chavez, 62 S.W.3d 225, 228 (Tex. App. - Amarillo 2001, orig. proceeding)

(“[A]dmittedly, the need to consider and rule upon a motion is not a discretionary

act.”); In re Minnfee, No. 07-09-0005-CV, 2009 Tex.App. LEXIS 332, at *2 (Tex.

App.-Amarillo Jan. 16, 2009, orig. proceeding) (“[W]e cannot tell a trial judge how

to rule on motions pending before them before the trial judge himself rules on

them.”).

      It is well settled that a trial court violates a ministerial duty when it denies

issuance of a writ of habeas corpus. In re J.C.L., No. 10-11-00447-CV (Tex. App.

- Waco February 15, 2012) (original proceeding) (“the trial court has a ministerial

duty to consider and rule on relator’s habeas corpus applications”) (unpublished); In

re Solis, No. 04-04-00050-CV, 2004 WL 1336266 (Tex. App.—San Antonio June

16, 2004, orig. proceeding) (holding that defendant was entitled to writ of mandamus

ordering trial court to consider and rule on his habeas corpus application)

(unpublished).

      There is no right of appeal from the refusal to issue a writ of habeas corpus

when the trial court did not consider and resolve the merits of the application. See

Ex parte Ainsworth, 27 Tex. 731, 732-33 (Tex. 1865); Ex parte McCullough, 966

S.W.2d 529, 531 (Tex. Cr. App. 1998); Purchase v. State, 176 S.W.3d 406, 407

                                         10
(Tex. App. - Houston [1st Dist.] 2004, no pet.); Ex parte Okere, 56 S.W.3d 846, 850

(Tex. App. - Fort Worth 2001, pet ref’d); Ex parte Gonzales, 12 S.W.3d 913, 914

(Tex. App. - Austin 2000, pet. ref’d); cf. Ex parte Hargett, 819 S.W.2d 866, 869

(Tex. Cr. App. 1991) (holding that if trial court reaches merits of habeas corpus

application, its ruling is appealable even if trial court refused to issue writ).

      An examination of the record in the present case reveals that the trial court

denied issuance of the writ without hearing evidence or argument regarding

Relator’s claims, and without expressing an opinion on the merits of those claims.

(Exhibit 2, 4); See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Cr. App. 2008)

(“A hearing held to determine whether a writ should issue or whether the merits of

claims should be addressed is not the same as one that is held to resolve the merits

of an applicant’s allegations.”); Hargett, 819 S.W.2d at 868. Because the court did

not consider and resolve the merits of Relator’s habeas corpus application, Relator

could not appeal. Had he done so, his appeal would have been dismissed for lack of

jurisdiction.

      In general, the absence of the right of appeal satisfies the mandamus

requirement that the relator have no legal remedy. Rosenthal v. Poe, 98 S.W.3d 194,

199 (Tex. Cr. App. 2003) (orig. proceeding).

      When a trial judge refuses to issue a writ of habeas corpus or denies a hearing

on the merits, an applicant’s remedies are limited. The applicant may either present

                                           11
the application to another judge having jurisdiction, or “under proper circumstances”

seek a writ of mandamus. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App.

1991) (citing Von Kolb v. Koehler, 609 S.W.2d 654 (Tex. App.-El Paso 1980, orig.

proceeding)); see Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Cr. App. 2008)

(“Some remedies available to an applicant in that situation are to present the

application to another district judge having jurisdiction, or under proper

circumstances, to pursue a writ of mandamus.”); see also Ex parte Hayes, No. WR-

77,189-01 (Tex. Cr. App. March 7, 2012) (unpublished) (Johnson, J., concurring)

(“If the district court does not rule or refuses to rule, [the applicant] may then file an

application for a writ of mandamus in the court of appeals and petition that court to

order the district court to rule on his properly filed application for a writ of habeas

corpus. Once he has a ruling, he may appeal it if he so chooses. If the court of appeals

denies relief on his application for a writ of mandamus, he may file an application

for a writ of mandamus in this Court.”).

      Although this Court has suggested that an applicant “shop around” his writ to

other district courts, several Courts of Appeal have found this procedure to be

impracticable. The Waco court of appeals found that the time involved in trying to

present a writ to another district court after its issuance has been denied is an

inadequate remedy. In re Davis, 990 S.W.2d 455 (Tex. App. - Waco 1999, original

proceeding). In Davis, the court held as follows:

                                           12
      Given the short period of time before the date for the second trial as
      scheduled by the Respondent, in which Davis would have to seek the
      requested relief, and the difficulties inherent in locating another district
      judge to rule on the merits of his habeas application and to then obtain
      appellate review in the event of a denial of the application, we conclude
      the theoretical habeas remedy available to Davis is inadequate in these
      circumstances.


In re Davis, 990 S.W.2d 455 (Tex. App. — Waco 1999, original proceeding).



      Other courts of appeal have ruled similarly. See Von Kolb v. Koehler, 609

S.W.2d 654, 655-56 (Tex. App. - El Paso 1980, orig. proceeding); In re Altschul,

236 S.W.3d 453 (Tex. App. - Waco 2007 original proceeding); Thi Van Le v.

Perkins, 700 S.W.2d 768, 776 (Tex. App. - Austin 1985, orig. proceeding),

mandamus denied sub nom. Perkins v. Court of Appeals, 738 S.W.2d 276 (Tex. Cr.

App. 1987) (A remedy by appeal will not prevent the issue of mandamus if that

remedy is inadequate or tedious.).



      3.    Mandamus is appropriate in these circumstances.



      In Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App. 1991) this Court

cited Von Kolb v. Koehler, 609 S.W.2d 654, 655-56 (Tex. App. - El Paso 1980, orig.

proceeding) for the proposition that mandamus is appropriate in certain

                                          13
circumstances where a trial court refuses to issue a writ of habeas corpus. In Von

Kolb, relator filed a pre-trial application for writ of habeas corpus sixteen days before

the court of appeals’ opinion. He made several unsuccessful attempts to set a hearing

date, but the trial court took no action on the application. The court of appeals

rejected the state’s argument that Von Kolb had the adequate remedy of “shop[ping]

around for a different forum which would take action on his application for the writ

of habeas corpus.” Id. at 656. The court conditionally issued the writ, ordering the

trial judge to act on the application. Id.

      In an attempt to comply with the suggestion of Ex parte Hargett, 819 S.W.2d

866, 868 (Tex. Cr. App. 1991), Relator presented his pre-trial writ of habeas corpus

to other district courts. The 179th district court and 230th district court issued written

orders also denying issuance of the writ. (Exhibits 6, 8). Several other district courts

were approached as well, but were unwilling to participate in Relator’s shopping

expedition. 1

      Relator regrets the timing of this writ of mandamus coming so close to the

start of trial. In addition to the delay caused by his shopping trip through the district




1
 In his attempt to “shop around” for a district court willing to issue the writ, it was
Relator’s distinct impression that the other district courts were less than enthusiastic
about interfering with a case originating from another district court.

                                             14
courts, Relator has been delayed in filing this mandamus due to the health of the

undersigned counsel. 2



      4.     Relator is in need of temporary relief.



      TEX. CONST. art. V, §5(c) authorizes this Court to issue writs of mandamus

and other writs necessary to enforce its jurisdiction, issue writs of mandamus

agreeable to principles of law regulating such writs against a judge of a district or

county court in the appellate court’s district, and issue writs of habeas corpus in

certain instances. See TEX. CONST. art. V, § 5(c) (“Subject to such regulations as

may be prescribed by law, the Court of Criminal Appeals and the Judges thereof

shall have the power to issue the writ of habeas corpus, and, in criminal law matters,

the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the

Judges thereof shall have the power to issue such other writs as may be necessary to

protect its jurisdiction or enforce its judgments.”).



2
  Undersigned counsel Shearer became afflicted with a MRSA staff infection on the
bones inside his foot beginning in October of 2014 and has had multiple surgeries
and hospital stays in an attempt to save his foot. Methicillin Resistant
Staphylococcus Aureus (MRSA) is a serious staph infection caused by an antibiotic-
resistant bacterium. See Colyer v. State, 428 S.W.3d 117 (Tex. Cr. App. 2014). The
prognosis is good, but the undersigned is still undergoing medical treatment as of
this date.

                                           15
      This is an emergency motion because the Relator’s case is set for a trial date

of Friday, 06-26-2015. (See attached Exhibit 1). Relator is scheduled to pick a jury

on 06-26-2015 and begin testimony on 6-29-2015. Relator has attached the petition

for writ of mandamus to this motion and incorporates it by reference.




                           Motion for Temporary Relief


      For the reasons stated in this motion and the attached petition for mandamus,

Relator prays this Honorable Court will issue a writ of mandamus directing

Respondent to stay Relator’s June 26, 2015 jury trial. Relator also prays that the

Respondent be ordered to answer, that the action be stayed pending further orders

from this Court, for this Court to set this petition for a hearing at the earliest

practicable time and to grant Relator any and all other appropriate relief. See TEX.

R. APP. PROC. 52.10.




                                        16
           Respectfully submitted,


     By:   /s/ R. SCOTT SHEARER
           R. Scott Shearer
           TBA No. 00786464
           917 Franklin, Suite 320
           Houston, Texas 77002
           (713) 254-5629
           (713) 224-2889 FAX
           ShearerLegal@Yahoo.com

           Attorney for Relator


           June 25, 2015




17
                        CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the attached petition for writ of
mandamus, motion for temporary relief, and record, has been served upon the
Respondent and the State by EXPEDITED MEANS by e-mailing a copy of same to
the following addresses on this the 25th day of June, 2015:


HON. JIM WALLACE
ERICA THOMAS BRICE, COORDINATOR
263RD DISTRICT COURT
1201 FRANKLIN, 15TH FLOOR
HOUSTON, TEXAS 77002
Erica_Thomas-Brice@justex.net

A.D.A. CLINTON MORGAN
DISTRICT ATTORNEY’S OFFICE
APPELLATE SECTION
HOUSTON, TX 77002
MORGAN_CLINTON@dao.hctx.net

                                                  /s/ R. SCOTT SHEARER
                                                  R. Scott Shearer




                                       18
  IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                              No. _______________


IN RE MATHEW PAYAM SHALOUEI,
                           Relator

             _____________________________________________________

               RELATOR’S PETITION FOR WRIT
                     OF MANDAMUS
             _____________________________________________________


             _____________________________________________________

            From the First Court of Appeals, Houston, Texas, denying
            mandamus relief in Cause Number 01-15-00555-CR from
              an order of the 263rd District Court of Harris County,
               Texas, Honorable Jim Wallace presiding in Cause
                         Numbers 1411883 & 1437307
             _____________________________________________________


Jerome Godinich, Jr.                             R. Scott Shearer
TBA No. 08054700                                 TBA No. 00786464
917 Frankilin, Suite 320                         917 Franklin, Suite 320
Houston, TX 77002                                Houston, TX 77002
(713) 237-8388                                   (713) 254-5629
(713) 224-2889 FAX                               (713) 224-2889 FAX
JGodinich@AOL.com                                ShearerLegal@Yahoo.com

Attorney for Relator                             Attorney for Relator
                                                 (on writ and mandamus only)




                                       i
                    REQUEST FOR ORAL ARGUMENT


        The Relator, MATHEW PAYAM SHALOUEI, requests oral argument in this

case.




                                     ii
                     IDENTITY OF PARTIES AND COUNSEL


      So that the members of this Court may evaluate possible disqualification or

recusal, Relator submits the following list of interested parties and their respective

attorneys:


      Mathew Payam Shalouei -                        Relator

      [in custody]

      Jerome Godinich, Jr.                           Attorney for Relator.

      917 Franklin, Suite 320
      Houston, TX 77002

      R. Scott Shearer -                             Attorney for Relator.
                                                     (on writ and mandamus only)

      917 Franklin, Ste. 320
      Houston, TX 77002

      Lacy Johnson -                                 Counsel for the State of Texas.

      District Attorney’s Office
      1201 Franklin
      Houston, TX 77002

      Hon. Jim Wallace -                             Respondent.

      263rd District Court
      1201 Franklin, 15th Floor
      Houston, Texas 77002




                                          iii
                                    TABLE OF CONTENTS

                                                                                                   Page

STATEMENT REGARDING ORAL ARGUMENT...................................... ii

IDENTITY OF PARTIES AND COUNSEL….…......................................... iii

INDEX OF AUTHORITIES........................................................................... v-viii

THE PARTIES………………….................................................................... 2

STATEMENT OF THE CASE......................................................................... 2

STATEMENT OF JURISDICTION…………………………………………. 3

ISSUES PRESENTED……………………………………………………….. 3

STATEMENT OF FACTS…………………………………………………… 4

ARGUMENT AND AUTHORITIES………………………….…………….. 5

PRAYER FOR RELIEF................................................................................... 19

CERTIFICATION……………………………………………………………. 20

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4…………21

CERTIFICATE OF SERVICE......................................................................... 22

RECORDS AND EXHIBITS………………………………………………… 23




                                                    iv
                                        INDEX OF AUTHORITIES
                                                                                                                        Page

CASES

Allen v. Guarino, 635 S.W.2d 129 (Tex. App. - Houston [1st Dist.] 1981, no writ) 6

Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Cr. App. 2011) .................................5

City of Highland Park v. Dallas Ry. Co., 243 S.W. 674 (Tex. Civ. App.- Dallas

  1922, writ ref'd) .......................................................................................................9

Click v. State, 118 Tex.Crim. 404, 39 S.W.2d 39 (1931) ........................................12

Colyer v. State, 428 S.W.3d 117 (Tex. Cr. App. 2014) .............................................5

Dawson v. First National Bank of Troup, 417 S.W.2d 652 (Tex. Civ. App. - Tyler

  1967, no writ) ........................................................................................................13

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ....................7

Ex parte Ainsworth, 27 Tex. 731 (Tex. 1865) .........................................................14

Ex parte Gonzales, 12 S.W.3d 913 (Tex. App. - Austin 2000, pet. ref’d) ..............15

Ex parte Hargett, 819 S.W.2d 866 (Tex. Cr. App. 1991) ...........................................

  ................................................................................ 4, 10, 11, 12, 13, 15, 16, 17, 18

Ex parte Hayes, No. WR-77,189-01 (Tex. Cr. App. March 7, 2012) (unpublished)

  ...............................................................................................................................16

Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Cr. App. 1998) ................. 13, 15

Ex parte Okere, 56 S.W.3d 846 (Tex. App. - Fort Worth 2001, pet ref’d) .............15

Ex parte Villanueva, 252 S.W.3d 391 (Tex. Cr. App. 2008)............................ 15, 16
                                                                v
Ex parte Wiley, 949 S.W.2d 3 (Tex. App. - Fort Worth 1996, no pet.)...................11

IMC Fertilizer, Inc. v. O'Neill, 846 S.W.2d 590, 591 (Tex. App. - Houston [14th

  Dist.] 1993, orig. proceeding). ............................................................................7, 8

In re Altschul, 236 S.W.3d 453 (Tex. App. - Waco 2007, original proceeding) .....17

In re Chavez, 62 S.W.3d 225 (Tex. App. - Amarillo 2001, orig. proceeding) ........14

In re Davis, 990 S.W.2d 455 (Tex. App. - Waco 1999, original proceeding) ........17

In re Dickason, 987 S.W.2d 570 (Tex.1998) (orig. proceeding) ...............................7

In re J.C.L., No. 10-11-00447-CV (Tex. App. - Waco February 15, 2012, original

  proceeding) (unpublished) ....................................................................................14

In re Minnfee, No. 07-09-0005-CV, 2009 Tex.App. LEXIS 332, at *2 (Tex. App.-

  Amarillo Jan. 16, 2009, orig. proceeding) ............................................................14

In re Solis, No. 04-04-00050-CV, 2004 WL 1336266 (Tex. App.—San Antonio

  June 16, 2004, orig. proceeding) (unpublished) ...................................................14

In re State, 50 S.W.3d 100 (Tex. App. - El Paso 2001, orig. proceeding) ................7

In re Tyrone Allen, Nos. WR-82, 265-01, WR-82, 265-02 (Tex. Cr. App. May 13,

  2015)........................................................................................................................9

O'Donniley v. Golden, 860 S.W.2d 267 (Tex. App. - Tyler 1993, orig. proceeding)

  ...............................................................................................................................13

Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Cr. App. 2003) ....................................5



                                                               vi
Purchase v. State, 176 S.W.3d 406 (Tex. App. - Houston [1st Dist.] 2004, no pet.)

  ...............................................................................................................................15

Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Cr. App. 2003)..........................................15

State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Cr. App. 1994) (orig.

  proceeding) ................................................................................................... 3, 6, 10

State ex rel. Holmes v. Honorable Court of Appeals for Third Dist., 885 S.W.2d

  389 (Tex. Cr. App. 1994) ........................................................................................7

State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex. Cr. App.

  1994)........................................................................................................................9

State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex. Cr. App. 1985) ..........................6

Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Cr. App. 1989) ......................................8

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420 (Tex. Cr. App. 1981) ......6

Thi Van Le v. Perkins, 700 S.W.2d 768 (Tex. App. - Austin 1985, orig.

  proceeding), mandamus denied sub nom. Perkins v. Court of Appeals, 738

  S.W.2d 276 (Tex. Cr. App. 1987) .........................................................................17

Von Kolb v. Koehler, 609 S.W.2d 654 (Tex. App. - El Paso 1980, orig. proceeding)

  ............................................................................................................ 16, 17, 18, 19

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ............................................... 6, 7, 8

White v. Baker & Botts, 833 S.W.2d 327 (Tex. App. - Houston [1st Dist.] 1992, no

  writ) .......................................................................................................................13

                                                               vii
Wolff v. Thornton, 670 S.W.2d 764 (Tex. App. - Houston [1st Dist] 1984, no writ) 6


STATUTES

TEX. CRIM. PROC. CODE ANN. art. 11.01..................................................................11

TEX. CRIM. PROC. CODE ANN. art. 11.05..................................................................12

TEX. CRIM. PROC. CODE ANN. art. 11.14..................................................................12

TEX. CRIM. PROC. CODE ANN. art. 11.15..................................................................12

Tex. GOV’T CODE ANN. §22.221 ..................................................................... 3, 5, 11

TEX. GOV’T CODE ANN. §24.011 .............................................................................11

TEX. PENAL CODE §19.03 ...........................................................................................2




CONSTITUTIONAL PROVISIONS

TEX. CONST. art. I, §12 .............................................................................................12

TEX. CONST. art. V, §5(C) ...........................................................................................3

TEX. CONST. art. V, §8 .............................................................................................11




                                                         viii
  IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                             No. _______________


IN RE MATHEW PAYAM SHALOUEI,
                         Relator

             _____________________________________________________

               RELATOR’S PETITION FOR WRIT
                     OF MANDAMUS
             _____________________________________________________


             _____________________________________________________

            From the First Court of Appeals, Houston, Texas, denying
            mandamus relief in Cause Number 01-15-00555-CR from
              an order of the 263rd District Court of Harris County,
               Texas, Honorable Jim Wallace presiding in Cause
                         Numbers 1411883 & 1437307
             _____________________________________________________


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:


      Relator, MATHEW PAYAM SHALOUEI respectfully submits this petition

for writ of mandamus from an order of the 263rd District Court of Harris County,

Texas, the Honorable Jim Wallace presiding, denying issuance of Relator’s pre-trial

writ of habeas corpus. (Exhibits 2-4).




                                         1
A.    The Parties


      1.     The Relator


      Relator, MATHEW PAYAM SHALOUEI is the Defendant in criminal action

number 1411883 in the 263rd Judicial District Court of Harris County, Texas.

Relator is charged with the offense of capital murder. See TEX. PENAL CODE §19.03.

(Exhibits 1-2).


      2.     The Respondent


      Respondent, Judge Jim Wallace, is the presiding judge of the 263rd District

Court of Harris County, Texas, the court in which Relator’s trial is scheduled.



B.    Statement of the case


      The Defendant was indicted in cause number 1411883 in the 263rd district

court of Harris County, Texas for the offense of capital murder. See TEX. PENAL

CODE §19.03. Based upon recent decisions of the United States Supreme Court,

Relator filed a pre-trial writ of habeas corpus alleging that the Texas capital

sentencing scheme for juveniles is facially unconstitutional. (Exhibit 3).        The

Respondent issued an order denying issuance of Relator’s pre-trial writ. (Exhibit 4.

A jury trial is preferentially set for June 26, 2015. (Exhibit 1).
                                           2
C.    Statement of jurisdiction


      TEX. CONST. art. V, §5(c) authorizes this Court to issue writs of mandamus

and other writs necessary to enforce its jurisdiction, issue writs of mandamus

agreeable to principles of law regulating such writs against a judge of a district or

county court in the appellate court’s district, and issue writs of habeas corpus in

certain instances. See TEX. CONST. art. V, § 5(c) (“Subject to such regulations as

may be prescribed by law, the Court of Criminal Appeals and the Judges thereof

shall have the power to issue the writ of habeas corpus, and, in criminal law matters,

the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the

Judges thereof shall have the power to issue such other writs as may be necessary to

protect its jurisdiction or enforce its judgments.”).




D.    Issues presented


      ISSUE ONE: DID THE RESPONDENT VIOLATE HIS MINISTERIAL
      DUTY TO ISSUE RELATOR’S PRE-TRIAL WRIT OF HABEAS
      CORPUS?

      ISSUE TWO: DOES RELATOR HAVE AN ADEQUATE REMEDY AT
      LAW?




                                           3
E.    Relief Sought


      Relator files this petition for writ of mandamus, asking this Court to order

Judge Wallace to issue Relator’s previously filed writ of habeas corpus. Because

Respondent had no discretion in the matter, he had a ministerial duty to issue the

writ according to recognized procedure and process.




F.    Statement of facts.


      This petition for writ of mandamus results from Respondent’s failure to

perform his ministerial duty to grant issuance of Relator’s pre-trial writ of habeas

corpus. The trial court denied issuance of the writ without hearing evidence or

argument regarding appellant’s claims, and without expressing an opinion on the

merits of those claims. (Exhibits 2, 4).

      In an attempt to comply with the suggestion of Ex parte Hargett, 819 S.W.2d

866, 868 (Tex. Cr. App. 1991), Relator presented his pre-trial writ of habeas corpus

to other district courts. The 179th district court and 230th district court issued written

orders also denying issuance of the writ. (Exhibits 6, 8). Several other district courts




                                            4
were approached as well, but were unwilling to participate in Relator’s shopping

expedition. 3

      Relator regrets the timing of this writ of mandamus coming so close to the

start of trial. In addition to the delay caused by his shopping trip through the district

courts, Relator has been delayed in filing this mandamus due to the health of the

undersigned counsel. 4

      As required by Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Cr. App. 2003),

Shalouie first presented this petition to the Court of Appeals for the First District.

The writ was assigned Cause Number 01-15-00555-CR. Relief was denied by

written opinion issued June 24, 2015. (Exhibit 9). The request for mandamus relief

against Respondent may now be filed in this Court. See Bowen v. Carnes, 343

S.W.3d 805, 810 (Tex. Cr. App. 2011).




3
 In his attempt to “shop around” for a district court willing to issue the writ, it was
Relator’s distinct impression that the other district courts were less than enthusiastic
about interfering with a case originating from another district court.
4
  Undersigned counsel Shearer became afflicted with a MRSA staff infection on the
bones inside his foot beginning in October of 2014 and has had multiple surgeries
and hospital stays in an attempt to save the foot. Methicillin Resistant
Staphylococcus Aureus (MRSA) is a serious staph infection caused by an antibiotic-
resistant bacterium. See Colyer v. State, 428 S.W.3d 117 (Tex. Cr. App. 2014). The
prognosis is good, but the undersigned is still undergoing medical treatment as of
this date.

                                           5
G.    Argument and Authorities



      1.     Standard of review.



      This Court has the authority to issue the writ of habeas corpus and the writs

of mandamus, procedendo, prohibition, and certiorari. The Court and the Judges

thereof also have the power to issue such other writs as may be necessary to protect

its jurisdiction or enforce its judgments. TEX. CONST. art. V, §5(c)

      The extraordinary relief of mandamus will not generally issue unless the result

sought by the aggrieved party is “ministerial” in nature, as opposed to being

“judicial” or “discretionary.” State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex.

Cr. App. 1985). In State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Cr. App.

1994) (orig. proceeding) this Court stated that an act is ministerial when the, “law

clearly spells out the duty to be performed with such certainty that nothing is left to

the discretion or judgment.” State ex rel. Healey v. McMeans, 884 S.W.2d at 774;

see Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Cr. App.

1981). The Court further explained that while mandamus is not a substitute for

appeal, it may be used to correct judicial action, “that is clearly contrary to well-

settled law, whether that law is derived from statute, rule, or opinion of a court.” Id.




                                           6
      Mandamus may also issue where a court has so clearly abused its discretion

that it amounts to a clear and prejudicial error of law. A trial court clearly abuses its

discretion if it reaches a decision “so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.

1994). In other words, an abuse of discretion occurs if a trial court acted without

reference to any guiding rules and principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

      The resolution of factual matters is committed to the sound discretion of the

trial court, and the reviewing court may not substitute its judgment for that of the

trial court. Walker, 827 S.W.2d at 839. On the other hand, appellate review of a

trial court's determination of what the law is, or its application of the law to the facts,

is much less deferential. Id. at 840. Because a trial court has no discretion in the

matter, a failure of the trial court to properly analyze the law or apply it to the facts

will constitute an abuse of discretion. Id.; IMC Fertilizer v. O’Neill, 846 S.W.2d

590, 591 (Tex. App. - Houston [14 Dist.] 1993).

      Mandamus is available when a trial judge enters an order without statutory

authority. In re State, 50 S.W.3d 100, 102 (Tex. App. - El Paso 2001, orig.

proceeding). An order entered without authority is void, and mandamus is the

appropriate remedy when a trial court enters a void order. In re Dickason, 987



                                            7
S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); State ex rel. Holmes v. Third Court

of Appeals, 885 S.W.2d 389, 396 (Tex. Cr. App. 1994).

      In a mandamus proceeding, the reviewing court must determine whether the

relator has an adequate remedy by appeal, and whether the respondent abused his

discretion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); IMC Fertilizer,

Inc. v. O’Neill, 846 S.W.2d 590, 591 (Tex. App. - Houston [14th Dist.] 1993, orig.

proceeding). Mandamus will not normally issue when there is a clear and adequate

remedy by a regular appeal, because mandamus is intended to be an extraordinary

remedy, available only in limited circumstances. Walker, 827 S.W.2d at 840. The

writ usually issues only in situations involving manifest and urgent necessity. Id.

      Mandamus is the proper vehicle to review the Respondent’s actions in this

case. Relator is entitled to mandamus relief because Judge Wallace (1) failed to

perform a ministerial duty; and (2) Relator has no adequate remedy at law. See

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)(original proceeding); In re Union

Pac. Resources Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding); In re

O’Connor, 92 S.W.3d 446, 450 (Tex. 2002) (orig. proceeding). Additionally, the

errors presented in this mandamus are of such importance to the jurisprudence of the

State that the Respondent’s actions require correction. Mandamus is the most

judicially economic way of correcting the trial court’s failure to perform its

mandatory, ministerial duty to issue the writ of habeas corpus. Relator would be

                                          8
forced to endure a void felony trial before being able to secure relief through a

normal appeal. See Stearnes v. Clinton, 780 S.W.2d 216, 225 (Tex. Cr. App.

1989)(Using “the appellate process in this situation to correct this particular ill would

be too burdensome and would only aggravate the harm and most likely would result

in a new trial compelling relator to again endure a trip through the system.”); City of

Highland Park v. Dallas Ry. Co., 243 S.W. 674, 681 (Tex. Civ. App.- Dallas 1922,

writ ref’d) (remedy must be “equally convenient, beneficial, and effective as the

proceeding by mandamus”). A regular appeal is not an adequate remedy in this

situation. See State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389, 394

(Tex. Cr. App. 1994)(“In some cases, a remedy at law may technically exist;

however, it may nevertheless be so uncertain, tedious, burdensome, slow,

inconvenient, inappropriate or ineffective as to be deemed inadequate.”).



      1.     The Respondent had a ministerial duty to issue the writ of habeas
             corpus. Relator has a clear right to the relief sought.


      In the recent case of In re Tyrone Allen, this Court set out the current standard

to be applied in mandamus cases. See In re Tyrone Allen, Nos. WR-82, 265-01,

WR-82, 265-02 (Tex. Cr. App. May 13, 2015). Mandamus relief is appropriate only

when a relator establishes (1) that he has no adequate remedy at law to redress his

alleged harm, and (2) that what he seeks to compel is a ministerial act, not a

                                           9
discretionary or judicial decision. A relator satisfies the ministerial act component

when he can show that he has a clear right to the relief sought. “A clear right to

relief is shown when the facts and circumstances dictate but one rational decision

'under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case

law sources), and clearly controlling legal principles.’” A ministerial act, by its

nature, does not involve the use of judicial discretion; it must be positively

commanded and so plainly prescribed under the law as to be free from doubt. While

a trial court has a ministerial duty to rule upon a properly filed and timely presented

motion, it generally has no ministerial duty to rule a certain way on that motion. It

is proper to order a court to rule a particular way only when the law invoked is

“definite, unambiguous, and unquestionably applies to the indisputable facts of the

case.” In re Tyrone Allen, Nos. WR-82, 265-01, WR-82, 265-02 (Tex. Cr. App. May

13, 2015); see State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Cr. App.

1994) (orig. proceeding) (an act is ministerial when the, “law clearly spells out the

duty to be performed with such certainty that nothing is left to the discretion or

judgment.” While mandamus is not a substitute for appeal, it may be used to correct

judicial action “that is clearly contrary to well-settled law, whether that law is

derived from statute, rule, or opinion of a court.” Id.

      In a habeas corpus proceeding, “there is a distinction between the issuance of

a writ of habeas corpus and the granting of relief on the claims set forth in an

                                          10
application for that writ.” Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Cr. App.

1991). The writ is defined as an order issued by a court or judge of competent

jurisdiction, directed to anyone having a person in his custody, or under his restraint,

commanding him to produce such person, at a time and place named in the writ, and

show why he is held in custody or under restraint. TEX. CRIM. PROC. CODE ANN. art.

11.01. In other words, the writ in a habeas corpus proceeding is merely the formal

order securing the presence of the person in custody.

      A court of appeals’ jurisdiction over appeals of pre-trial habeas matters is

limited to review of the trial court’s written order ruling on the merits of the

application. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App. 1991); Ex

parte Wiley, 949 S.W.2d 3, 4 (Tex. App. - Fort Worth 1996, no pet.). When a hearing

is held on the merits of an applicant’s claim and the court subsequently rules on the

merits of that claim, the losing party may appeal. Ex Parte Hargett, 819 S.W.2d

866, 868 (Tex. Cr. App. 1991).

      In the present case, the Respondent issued a written order denying issuance of

the writ. (Exhibit 2, 4). An examination of the record reveals that the trial court

denied issuance of the writ without hearing evidence or argument regarding

Relator’s claims, and without expressing an opinion on the merits of those claims.

Because the court did not consider and resolve the merits of appellant’s habeas

corpus application, Relator could not appeal to the court of appeals.

                                          11
      It is beyond question that the Respondent had a duty to issue the writ. Texas

district courts have constitutional and statutory authority to issue writs of habeas

corpus. TEX. CONST. art. V, §8; TEX. GOV’T CODE ANN. §24.011; TEX. CRIM. PROC.

CODE ANN. art. 11.05; Ex parte Hargett, 819 S.W.2d 866, 867 (Tex. Cr. App. 1991).

The Texas Constitution provides that the writ of habeas corpus is a “writ of right.”

TEX. CONST. art. I, §12. The Texas Code of Criminal Procedure further provides

that it is the duty of a district court, “upon proper motion, to grant the writ under the

rules prescribed by law.” TEX. CRIM. PROC. CODE ANN. art. 11.05. The writ “shall

be granted without delay by the judge or court receiving the petition, unless it be

manifest from the petition itself, or some documents annexed to it, that the party is

entitled to no relief whatsoever.” TEX. CRIM. PROC. CODE ANN. art. 11.15. “Where

one entitled to a writ of habeas corpus makes proper application for it to the proper

court having jurisdiction, said application conforming to all the statutory

requirements and probable cause being shown, the writ of habeas corpus cannot be

denied to the relator, for it then becomes a constitutional right. Neither can it be

denied where the granting of it is made an imperative duty by statute.” Click v. State,

118 Tex.Crim. 404, 407-408, 39 S.W.2d 39, 41 (1931). Relator has complied with

the requirements for such petitions. See TEX. CRIM. PROC. CODE ANN. art. 11.14.

Judge Wallace had a mandatory duty to issue the writ of habeas corpus returnable in

Harris County, to let the writ be served upon the sheriff of Harris County, and to

                                           12
timely to hear the merits of Relator’s complaint. See TEX. CRIM. PROC. CODE ANN.

arts. 11.05, 11.08, 11.10, 11.11, 11.27, 11.31, 11.40.



      2.     Relator has no adequate remedy at law.



      Respondent denied issuance of the writ on the grounds that the Respondent’s

claim is not cognizable on a pre-trial writ of habeas corpus. (Exhibit 4). It is

important to note that Relator is not asking the Respondent to rule a certain way in

his case. There is a distinction between the issuance of a writ of habeas corpus and

the granting of relief on the claims set forth in an application for that writ. Ex parte

Hargett, 819 S.W.2d 866, 869 (Tex. Cr. App. 1991). An applicant cannot appeal

from a trial court’s refusal to issue or grant a writ of habeas corpus, but may appeal

the denial of relief on the merits of the application. See Hargett, 819 S.W.2d at 868.

       At this juncture, Relator is only asking for the Respondent to issue the writ

according to recognized process and to make a ruling on the merits. See Ex parte

McCullough, 966 S.W.2d 529, 531 (Tex. Cr. App. 1998) (“The Court of Appeals

and the State have confused cognizability with jurisdiction. Certain claims may not

be cognizable on habeas corpus, i.e., they may not be proper grounds for habeas

corpus relief. However, if the district court denies relief, regardless of the underlying

claims for the relief sought, the applicant may appeal.”); O'Donniley v. Golden, 860

                                           13
S.W.2d 267, 269 (Tex. App. - Tyler 1993, orig. proceeding) (“While it is a basic

premise that an appellate court lacks the power to compel a trial judge to do a

particular act involving or requiring discretion on his part, this Court is empowered

to order a trial judge to exercise his discretion in some manner.”); see also In re

Chavez, 62 S.W.3d 225, 228 (Tex. App. - Amarillo 2001, orig. proceeding)

(“[A]dmittedly, the need to consider and rule upon a motion is not a discretionary

act.”); In re Minnfee, No. 07-09-0005-CV, 2009 Tex.App. LEXIS 332, at *2 (Tex.

App.-Amarillo Jan. 16, 2009, orig. proceeding) (unpublished) (“[W]e cannot tell a

trial judge how to rule on motions pending before them before the trial judge himself

rules on them.”).

      It is well settled that a trial court violates a ministerial duty when it denies

issuance of a writ of habeas corpus. In re J.C.L., No. 10-11-00447-CV (Tex. App.

- Waco February 15, 2012, original proceeding) (“the trial court has a ministerial

duty to consider and rule on relator’s habeas corpus applications”) (unpublished); In

re Solis, No. 04-04-00050-CV, 2004 WL 1336266 (Tex. App. - San Antonio June

16, 2004, orig. proceeding) (unpublished) (holding that defendant was entitled to

writ of mandamus ordering trial court to consider and rule on his habeas corpus

application).

      There is no right of appeal from the refusal to issue a writ of habeas corpus

when the trial court did not consider and resolve the merits of the application. See

                                         14
Ex parte Ainsworth, 27 Tex. 731, 732-33 (Tex. 1865); Ex parte McCullough, 966

S.W.2d 529, 531 (Tex. Cr. App. 1998); Purchase v. State, 176 S.W.3d 406, 407

(Tex. App. - Houston [1st Dist.] 2004, no pet.); Ex parte Okere, 56 S.W.3d 846, 850

(Tex. App. - Fort Worth 2001, pet ref’d); Ex parte Gonzales, 12 S.W.3d 913, 914

(Tex. App. - Austin 2000, pet. ref’d); cf. Ex parte Hargett, 819 S.W.2d 866, 869

(Tex. Cr. App. 1991) (holding that if trial court reaches merits of habeas corpus

application, its ruling is appealable even if trial court refused to issue writ).

      An examination of the record in the present case reveals that the trial court

denied issuance of the writ without hearing evidence or argument regarding

Relator’s claims, and without expressing an opinion on the merits of those claims.

(Exhibit 2, 4); See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Cr. App. 2008)

(“A hearing held to determine whether a writ should issue or whether the merits of

claims should be addressed is not the same as one that is held to resolve the merits

of an applicant’s allegations.”); Hargett, 819 S.W.2d at 868. Because the court did

not consider and resolve the merits of Relator’s habeas corpus application, Relator

could not appeal. Had he done so, his appeal would have surely been dismissed for

lack of jurisdiction.

      In general, the absence of the right of appeal satisfies the mandamus

requirement that the relator have no legal remedy. Rosenthal v. Poe, 98 S.W.3d 194,

199 (Tex. Cr. App. 2003) (orig. proceeding).

                                           15
      When a trial judge refuses to issue a writ of habeas corpus or denies a hearing

on the merits, an applicant’s remedies are limited. The applicant may either present

the application to another judge having jurisdiction, or “under proper circumstances”

seek a writ of mandamus. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App.

1991) (citing Von Kolb v. Koehler, 609 S.W.2d 654 (Tex. App.-El Paso 1980, orig.

proceeding)); see Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Cr. App. 2008)

(“Some remedies available to an applicant in that situation are to present the

application to another district judge having jurisdiction, or under proper

circumstances, to pursue a writ of mandamus.”); see Ex parte Hayes, No. WR-

77,189-01 (Tex. Cr. App. March 7, 2012) (unpublished) (Johnson, J., concurring)

(“If the district court does not rule or refuses to rule, [the applicant] may then file an

application for a writ of mandamus in the court of appeals and petition that court to

order the district court to rule on his properly filed application for a writ of habeas

corpus. Once he has a ruling, he may appeal it if he so chooses. If the court of appeals

denies relief on his application for a writ of mandamus, he may file an application

for a writ of mandamus in this Court.”).

      Although this Court has suggested that an applicant “shop around” his writ to

other district courts, several Courts of Appeal have found this procedure to be

impracticable. The Waco court of appeals found that the time involved in trying to

present a writ to another district court after its issuance has been denied is an

                                           16
inadequate remedy. In re Davis, 990 S.W.2d 455 (Tex. App. - Waco 1999, original

proceeding). In Davis, the court held as follows:


      Given the short period of time before the date for the second trial as
      scheduled by the Respondent, in which Davis would have to seek the
      requested relief, and the difficulties inherent in locating another district
      judge to rule on the merits of his habeas application and to then obtain
      appellate review in the event of a denial of the application, we conclude
      the theoretical habeas remedy available to Davis is inadequate in these
      circumstances.


In re Davis, 990 S.W.2d 455 (Tex. App. - Waco 1999, original proceeding).



      Other courts of appeal have ruled similarly. See Von Kolb v. Koehler, 609

S.W.2d 654, 655-56 (Tex. App. - El Paso 1980, orig. proceeding); In re Altschul,

236 S.W.3d 453 (Tex. App. - Waco 2007, original proceeding); Thi Van Le v.

Perkins, 700 S.W.2d 768, 776 (Tex. App. - Austin 1985, orig. proceeding),

mandamus denied sub nom. Perkins v. Court of Appeals, 738 S.W.2d 276 (Tex. Cr.

App. 1987) (A remedy by appeal will not prevent the issue of mandamus if that

remedy is inadequate or tedious.).




                                          17
      3.      Mandamus is appropriate in these circumstances.



      In Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App. 1991) this Court

cited Von Kolb v. Koehler, 609 S.W.2d 654, 655-56 (Tex. App. - El Paso 1980, orig.

proceeding) for the proposition that mandamus is appropriate in certain

circumstances where a trial court refuses to issue a writ of habeas corpus. In Von

Kolb, relator filed a pre-trial application for writ of habeas corpus sixteen days before

the court of appeals’ opinion. He made several unsuccessful attempts to set a hearing

date, but the trial court took no action on the application. The court of appeals

rejected the state’s argument that Von Kolb had the adequate remedy of “shop[ping]

around for a different forum which would take action on his application for the writ

of habeas corpus.” Id. at 656. The court conditionally issued the writ, ordering the

trial judge to act on the application. Id.

      In an attempt to comply with the suggestion of Ex parte Hargett, 819 S.W.2d

866, 868 (Tex. Cr. App. 1991), Relator presented his pre-trial writ of habeas corpus

to other district courts. The 179th district court and 230th district court issued written

orders also denying issuance of the writ. (Exhibits 6, 8). Several other district courts

were approached as well, but were unwilling to participate in Relator’s shopping

expedition.



                                             18
      The Respondent had a ministerial duty to issue the writ of habeas, which he

did not do. Relator has no ability to appeal the Respondent’s decision. This Court

should, therefore, grant Relator’s writ of mandamus and order the Respondent to

issue the Relator’s pre-trial writ of habeas corpus and make a ruling on the merits.

See Von Kolb v. Koehler, 609 S.W.2d 654, 655-56 (Tex. App. - El Paso 1980, orig.

proceeding).




      H.       Prayer for Relief


      FOR THESE REASONS, the Relator prays the Honorable Court of Criminal

Appeals will grant him a stay pending a hearing conducted by this Court, issue a writ

of mandamus directing Respondent to issue the Relator’s pre-trial writ of habeas

corpus, make a ruling on the merits of said writ, and grant Relator any and all other

appropriate relief.




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           Respectfully submitted,

     By:
           /s/ R. SCOTT SHEARER
           R. Scott Shearer
           TBA No. 00786464
           917 Franklin, Suite 320
           Houston, Texas 77002
           (713) 254-5629
           (713) 224-2889 FAX
           ShearerLegal@Yahoo.com

           Attorney for Relator

           June 23, 2015




20
        CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

           Certificate of Compliance with Type-Volume Limitations
                          and Typeface Requirements.


1.   This writ of mandamus complies with the type-volume limitation of Tex. R.
     APP. Proc. 9.4(i)(2) and (3) because:


     This writ of mandamus contains 4,200 words, excluding the parts of the
     mandamus exempted by Tex. R. APP. Proc. 9.4(i)(1).



2.   This writ of mandamus complies with the typeface requirements of Tex. R.
     APP. Proc. 9.4(e) because:


     this writ of mandamus has been prepared in a conventional
     proportionally spaced typeface using Microsoft WORD 97 version 7.0
     in Garamond 14 point type.




                                                    /s/ R. SCOTT SHEARER
                                                    R. Scott Shearer




                                      22
                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the attached petition for leave to file,
writ of mandamus, motion for temporary relief, and record, has been served upon
the Respondent and the State by EXPEDITED MEANS by e-mailing a copy of same
to the following addresses on this the 25th day of January, 2015:


HON. JIM WALLACE
ERICA THOMAS BRICE, COORDINATOR
263RD DISTRICT COURT
1201 FRANKLIN, 15TH FLOOR
HOUSTON, TEXAS 77002
Erica_Thomas-Brice@justex.net

A.D.A. CLINTON MORGAN
DISTRICT ATTORNEY’S OFFICE
APPELLATE SECTION
HOUSTON, TX 77002
MORGAN_CLINTON@dao.hctx.net




                                                      /s/ R. SCOTT SHEARER
                                                      R. Scott Shearer




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