                                                                                          ACCEPTED
                                                                                     02-15-00072-CV
                                                                           SECOND COURT OF APPEALS
                                                                                FORT WORTH, TEXAS
                                                                                3/20/2015 9:13:37 AM
                                                                                      DEBRA SPISAK
                                                                                              CLERK



                    IN THE COURT OF APPEALS
            SECOND COURT OF APPEALS DISTRICT OF TEXAS
                                                  FILED IN
                                                              2nd COURT OF APPEALS
                                                                FORT WORTH, TEXAS
                                                              03/20/2015 9:13:37 AM
                                                                  DEBRA SPISAK
IN RE                                      §                           Clerk
                                           §
                                           §
                                           §     NO. 02-15-00072-CV
                                           §
THEODIS DODSON, JR,                        §
                  RELATOR                  §


  STATE'S RESPONSE TO PETITION FOR WRIT OF MANDAMUS

      COMES NOW, the Real Party in Interest, the State of Texas, by and

through Hon. Sharen Wilson, the Criminal District Attorney of Tarrant

County, Texas, and hereby responds to the writ of mandamus of THEODIS

DODSON (“Relator”).

                              I.
               IDENTITY OF PARTIES AND COUNSEL

      Relator in the present cause is THEODIS DODSON, who is seeking

the trial court to rule on his request for a free copy of the reporter’s record.

The respondent is the Criminal District Court Number One of Tarrant

County, Texas (“trial court”). The real party in interest is Sharen Wilson,

the Criminal District Attorney in Tarrant County, Texas (herein after


                                       1
“State”).

      Relator is proceeding pro se on this petition for writ of mandamus.

The real party in interest is represented by Andréa Jacobs, 401 W. Belknap,

Fort Worth, Texas 76196-0201.




                                    2
                           II.
                   TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL …………………………1

INDEX OF AUTHORITIES ………………………………………………. 4

STATEMENT OF THE CASE …………………………………………..…6

STATE’S RESPONSE TO ISSUE PRESENTED ……………………...….9

ARGUMENT .……………………………………………………………..10

    Petition should be DENIED because Relator has failed to
    demonstrate that his motion has been filed or brought to the
    attention of the trial court……………………………………..... ..…10

CONCLUSION AND PRAYER ………………………………………….12

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

CERTIFICATE OF COMPLIANCE ……………………………………14

EXHIBITS ……………………………………………………………..A-H




                              3
                            III.
                   INDEX OF AUTHORITIES

STATE CASES                                            PAGE(S)

    TEXAS COURT OF CRIMINAL APPEALS

    Dickens v. Second Court of Appeals,
         727 S.W.2d 542 (Tex. Crim. App. 1987) …………………... 12

    TEXAS SUPREME COURT

    Canadian Helicopters Ltd. v. Wittig,
         876 S.W.2d 304 (Tex. 1994) ……………………………….. 10

    Johnson v. Fourth Court of Appeals,
         700 S.W.2d 916 (Tex. 1985) ………………………………. 10

    O’Connor v. First Court of Appeals,
         837 S.W.2d 94 (Tex. 1992) ……………………………….. 11

    Stoner v. Massey,
          586 S.W.2d 843 (Tex. 1979) ……………………………. 10,12

    TEXAS COURT OF APPEALS

    In re Chavez,
           62 S.W.3d 225
           (Tex. App. – Amarillo 2001, orig. proceeding) …………….. 11

    In re Davidson, 153 S.W.3d 490
           (Tex. App. – Amarillo 2004) ……………………………….. 11

    In re Villarreal,
           96 S.W.3d 708
           (Tex. App. – Amarillo 2003) ……………………………….. 12


                                4
TEXAS STATUTES AND RULES

    Tex. R. App. P. 9.4 (e) ……………………………………………. 14

    Tex. R. App. P. 9.4 (i) …………………………………………….. 14




                           5
                              IV.
                      STATEMENT OF THE CASE

      Relator pled guilty, pursuant to a plea bargain agreement, to the

capital offense of capital murder on March 4, 2008. See Judgment, No.

1072134D. In accordance with the plea agreement, the trial court sentenced

Relator to life without parole. See Judgment.

      On December 18, 2008, this Court dismissed Relator’s appeal for

want of jurisdiction. See Dodson v. State, No. 02-08-082-CR, 2008 WL

5265001 (Tex. App. – Fort Worth, Dec. 18, 2008) (op. on reh’g) (not

designated for publication). Mandate issued on February 3, 2009. See

Exhibit A: Record of Criminal Actions, No. 1072134D, Vol. 5, p. 1.

      Relator filed two applications for writ of habeas corpus while his

direct appeal was pending. See Ex parte Theodis Dodson, Nos. WR-50,689-

04, 05 (Tex. Crim. App. May 21, 2008) (White Card). Both applications

were dismissed. Id.

      Relator’s third application for writ of habeas corpus was denied

without written order on trial court’s findings without a hearing on August

25, 2010. See Ex parte Theodis Dodson, Nos. WR-50,689-11 (Tex. Crim.

App. Aug. 25, 2010) (White Card).


                                     6
      Relator filed a motion for DNA testing on December 27, 2013. See

Exhibit A, Vol. 5, p. 1. That motion was denied on April 12, 2014. See

Exhibit A, Vol. 5, p. 2.

      Even though Relator includes a letter from Judge Evans that he would

forward Relator’s request, there is no evidence that a motion for a free copy

of the reporter’s record has been filed in the trial court. See Exhibit A;

Exhibit B: Transaction Information Display, No. CDC1-1072134-00;

Exhibit C: Motion for Sanctions, Nos. 1071695D, 1072134D; Exhibit D:

Second Motion for Sanctions, Nos. 1071695D, 1072134D; Exhibit E:

Objection to State’s Response and Findings of Fact, Nos. 1071695D,

1072134D; Exhibit F: Motion [for] Leave to File to Compel This Honorable

Court to Compel the Honorable Court of CDC1 to do a Ministerial Act to

Appoint an Attorney Under Code Crim. Proc. 64.01(c), Nos. 1071695D,

1072134D; Exhibit G: Request for Disclosure Pursuant to Rule 194 Within

30 Days, Nos. 1071695D, 1072134D; Exhibit H: Letter, Dated October 20,

2014. There is no evidence that Relator’s motion was presented to the trial

court. See Exhibit A; Exhibit B; Exhibit C; Exhibit D; Exhibit E; Exhibit F;

Exhibit G; Exhibit H.

      On November 6, 2014, Relator inquired about the status of his request

                                     7
for a record. See Exhibit H.

      On March 4, 2015, Relator filed his petition for writ of mandamus

seeking this Court to order the trial court to rule on his motion for free

records. See Leave to File Writ of Mandamus (“Petition”), No. 02-15-072-

CV, p. 5. On March 10, 2015, this Court ordered the real party in interest to

file a response. See Order, No. 02-15-072-CV, p. 1.




                                     8
                       V.
      STATE’S RESPONSE TO ISSUE PRESENTED

This Court should deny Relator’s petition for writ of mandamus
because there is no evidence in the record that a motion for free
record has been filed or brought to the attention of the trial
court.




                               9
                                  VI.
                               ARGUMENTS

A.    Standard of Review

      Mandamus is an extraordinary remedy, available only in limited

circumstances. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305

(Tex. 1994). It is the burden of the relator to show entitlement to the relief

being requested. See generally Johnson v. Fourth Court of Appeals, 700

S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). In order to be entitled to

relief, the relator must show the following: (1) a legal duty to perform; (2) a

demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586

S.W.2d 843, 846 (Tex. 1979).



B.    Relator’s Petition should be DENIED because Relator has failed
      to demonstrate that his motion has been filed or brought to the
      attention of the trial court.

      Relator attaches a letter from Judge Evans that states:

      I have received your request. I don’t have jurisdiction to rule
      on your request. I [am] copying the trial judge with this letter
      and sending her the original of your request.

See Petition, Exhibit A: Evans Letter, Dated December 10, 2014. However,

the letter does not indicate what the request was or whether the trial court


                                      10
ever received it. See Petition, Exhibit A. According to the Tarrant County

District Clerk records, no motion for a free reporter’s record was filed. See

Exhibit A; Exhibit B; Exhibit C; Exhibit D; Exhibit E; Exhibit F; Exhibit G;

Exhibit H. Relator refers to the motion in the November 6, 2014, letter;

however, that letter does nothing more than inquire about the existence of

the motion. See Exhibit H. There is no evidence that the trial court has ever

received the motion.

      It is well settled that a trial court is not required to consider a motion

when it has not been presented with said motion. O’Connor v. First Court

of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (“Mandamus will issue when

there is a legal duty to perform a non-discretionary act, a demand for

performance, and a refusal.”); see also In re Chavez, 62 S.W.3d 225, 228

(Tex. App. – Amarillo 2001, orig. proceeding) (“Indeed, one can hardly be

faulted for doing nothing if he were never aware of the need to act.”). Only

“[s]howing that a motion was filed with the court clerk does not constitute

[sufficient] proof that the motion was brought to the trial court's attention or

presented to the trial court with a request for a ruling.” In re Davidson, 153

S.W.3d 490, 491 (Tex. App. – Amarillo 2004) (citations omitted).

      Here there is no evidence that the motion has been filed or presented

                                      11
to the trial court. Therefore, Relator has failed to establish that the trial court

has ever been presented the motion for a ruling.

       The burden is on Relator to show that the district court knew of its

duty to act and neglected to perform it. See In re Villarreal, 96 S.W.3d 708,

710-711 (Tex. App. – Amarillo 2003).              Here, Relator has failed to

demonstrate that his motion for a free reporter’s record was ever presented

to the trial court. Relator has failed to meet his burden. Id. Relator has thus

failed to prove that he is entitled to relief. See Stoner v. Massey, 586 S.W.2d

at 846. Relator’s Petition should be DENIED.


                                 VII.
                        CONCLUSION AND PRAYER

       The issuance of a mandamus is never a matter of right, but rests in the

sound discretion of the Court. Dickens v. Second Court of Appeals, 727

S.W.2d 542, 549 (Tex. Crim. App. 1987). Here, Relator’s Petition should be

denied because he has failed to show that the motion for free record was

ever presented to the trial court. Thus, Relator has failed to demonstrate that

the trial court has failed to act.

       Relator’s Petition should be DENIED.



                                        12
      WHEREFORE, PREMISES CONSIDERED, the State prays the

Court deny Relator’s Leave to File Writ of Mandamus.

                                     Respectfully submitted,

                                     SHAREN WILSON
                                     Criminal District Attorney
                                     Tarrant County, Texas

                                     /s/ Andréa Jacobs_______________
                                     ANDRÉA JACOBS, Assistant
                                     Criminal District Attorney
                                     401 W. Belknap
                                     Fort Worth, Texas 76196-0201
                                     (817) 884-1687
                                     FAX (817) 884-1672
                                     State Bar No. 24037596


                        CERTIFICATE OF SERVICE

      A true copy of the above response has been mailed to Relator, Mr.

Theodis Dodson, Jr., TDCJ-ID # 1490901, Connally Unit, 899 FM 632,

Kenedy, Texas 78119, and delivered to the respondent, the Hon. Elizabeth

Beach, Judge, Criminal District Court Number One, 401 W. Belknap, Fort

Worth, Texas 76196, on this the 20th of March, 2015.

                                     /s/ Andréa Jacobs_______________
                                     ANDRÉA JACOBS




                                    13
                    CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of Tex. R. App. P. 9.4(i)

because it contains 1652 words as computed by Word 2010, the computer

program used to prepare the document.

                                    /s/ Andréa Jacobs_______________
                                    ANDRÉA JACOBS




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EXHIBIT


 “A”
    

    

    



EXHIBIT


 “B”
EXHIBIT


 “C”
EXHIBIT


 “D”
EXHIBIT


  “E”
EXHIBIT


  “F”
EXHIBIT


 “G”
EXHIBIT


 “H”
