                                                                   is^o^
                            CADSE NO.   WR-82,810-01

EX PARTE                                  §                IN T^HE COURT OP
                                          .                CRIMINAL     APPEALS Ok
MARCO POLO MEDINA-GONZALEZ                S                THE STATE OF TEXAS


                   MOTION   FOR   LEAVE TO FILE PETITION FOR

                              WRIT OF   PROHIBITION



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL                        APPEALS:

   Comes now Marco Polo Medina-Gonzalez,'relator                        in the above-

entitled and numbered cause, and respectfully moves this Court

pursuant to Texas Rule of Appellate Procedure'211(a), 121(a)(1)
to qrant leave to file the accompaning original petition for

writ of    prohibition.




   Wherefore, premises considered, Relator prays that this

Honorable Court of Criminal Appeals grant his Writ of Prohibi

tion in the interest of justice.

                                                                                   RECEIVED IN
                                                                           COURT OF CRIMINAL APPEALS

                                                                                   MAY 112015

                                                                                Abel Acosta, Clerk
                            CERTIFICATE       OF   SERVICE


   I, Marco Polo Medina-Gonzalez,                  do certify that a true and

correct copy of this instrument has been served by placing same

in U.S. Mail, postage prepaid, on this 23rd day of April, 2015,

addressed    to:

District Attorney-Abelino Reyna
                                                    /s/ #Ltq Mdr?^-^o^l^lez
                                                    Marc</Polo Medina-Gonzalez
P.O. Box 2451                                       TDCJ-ID #1907021
Waco, Texas 76703                                   James y> Allred Unit
                                                    2101   F.M.   369   Ndrth
                                                    Iowa Park,     Texas 76367-6568
                IN THE    COURT OF CRIMINAL           APPEALS

                                 FOR      THE

                              STATE OF        TEXAS



EX PARTE                                  §           WR-82,810-01
MARCO POLO MEDINA-GONZALEZ                *

              APPLICATION FOR WRIT OF PROHIBITION




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

   Comes now Marco Polo Medina-Gonzalez,              hereinafter styled

relator, and files this application for writ of prohibition to

prohibit The 54th Judicial District Court .of Mclennan County,

Texas, respondent,    from denyinq relator's Writ of Habeas Corpus

pursuant to Article 11.07, or from encouraging this Honorable

Court to deny relator's Writ of Habeas Corpus in Cause No. 2012-

2077-C2A, styled Ex parte Marco Polo Medina-Gonzalez. In support

of this application, relator shows the following:


                                       I.


   On December 11,    2014,   Marco Polo Medina-Gonzalez filed an

application for Writ of habeas corpus pursuant to Article 11.07,
Tex.Code of Crim.P.    with the District Clerk of Mclennan County,

Texas, alleging inter alia Ineffective Assistance of Counsel, and
Ineffective Assistance of Appellate Counsel,              in which Judge Matt

Johnson designated these two issues specifically, and ordered by

decree trial counsel and Appellate counsel, which are one in the

same person, Denton B. Lessman to submit an affidavit by January

21, 2015. A copy of this order is attached as Exhibit A. Prior to

this.order via operation of law, the District Attorney answered
Mr. Gonzalez allegations.       Mr.Reyna (district attorney) reflected

                                 1   of   4
on the fact that Mr. Gonzalez was still conducting his direct

review process and that as a matter of fact,      Mr. Gonzalez attor

ney had filed a timely motion to extend the time to file the

petition for discretionary review on December 19, 2014. The dead

line was on December 22, 2014. Mr.Reyna subsequently suggested

that due to Mr.   Gonzalez status of the underlying conviction,

that his application for habeas review did not appear to be ripe
for determination and should be dismissed as being prematurely

filed. A copy of the State's answer is attached as Exhibit B.

Finally, the State habeas court judge submitted a findings of

fact and conclusion of law Memorandum.       In the Memorandum the

trial court made an assessment of the issues but failed to order

a decision to Grant or Deny Relator's writ of habeas corpus. In

lieu, and alternatively, the trial court judge recommended and

.supposedly delegated this Honorable Texas Court of Criminal

Appeals to deny relief. A copy of the trial court's finding of
fact and conclusion of law is attached as Exhibit C. This Honor

able Courtrecieved Relator's application for 11.07 Writ of Habeas

on January 30, 2015. The cause number in this Court is

WR-82,810-01.



                                       II.


   The Respondent's proposed action is aiclear violation of law
based on the facts of this case because the Direct Review process

in Relator's case was still pending due to the fact that the man

date had not been issued. Relator contends that til this day he

has yet to recieve any document or paperwork from the court
that's entitled    "MANDATE", and declares to this court that to.
the extent of his knowledge, he has'nt been issued a mandate from

                              2   of   4
the Tenth Court of Appeals thus,     rendering the judgement not

final.   Relator contends that'this Honorable Court of Criminal

Appeals has since ruled on the Petition for Discretionary Review,

in which it was refused on March 3, 2015. However, during the :. \ ->

time.period when Relator submitted his Writ of Habeas Corpus,.

Relator had yet to submit his PDR, in fact, he was still waiting

to see if the Court would grant the extention of time. Therefore,

as stated by the Representative of the State,"Relator's habeas

review was notrrdpe!'.The habeas court did not have jurisdiction z
to consider an application for writ of habeas corpus pursuant to

Article 11.07 until the felony judqement from which relief is

sought becomes final. Article 11.07 § 3 (a) V.A.C.C.P. E*.:parte
Thomas, 953 S.W.2d 285, 289 (Tex.Crim.App. 1997); Ex parte Brown

662 S.W.2d 3 (Tex.Crim.App. 1983); See Ex parte Renier, 734 S.W.:

2d 349 (Tex.Crim.App. 1987) (Teaque, J., dissenting) (discussing

rationales for final felony conviction requirement). A direct ') ;•;

appeal is final when the mandate from the Court of Appeals ::* ?> i" •
issues. Carter v. State, 510 S.W.2d 323, 324 (Tex.Crim.App. 1974)

Prior to the mandate,   a judgement is not final.

   Relator's claim is not ripe, because the application for writ

of habeas corpus was filed during the pendency of the direct
appeal. Consequently, as recommended by Mr. Reyna to the habeas
court judqe, Relator's Writ of habeas Corpus should have been
dismissed without prejudice for being prematurely filed.


                                   III.


   The relator has no adequate remedy at law to pursue the

requested relief other than this application.


                               3    of    4
                                       IV.


     This Court has jurisdiction to issue a writ of prohibition

in   this cause under Article 5,       Section 5 of the Texas Constitu*'r ~>

tion and Article 4.04 of the Code of Criminal Procedure.

     WHEREFORE, Relator prays the Court grant this application

and issue a writ of prohibition directing The 54th District Court

of Mclennan County, Texas, Respondent, to dismiss without pre

judice, Relator's Writ of Habeas Corpus due to premature filing.




                      CERTIFICATE OF          SERVICE


     I, Marco Polo Medina-Gonzalez,          do certify that a true and

correct copy of this instrument has been served by placing same

in U.S. Mail, postage prepaid, on this 23rd day of April, 2015,

addressed   to:


District Attorney-Abelino Reyna
P.O. Box 2451
Waco, Texas


                                                  Marc© Polo Medina-Gonzalez
                                                  TDCJ-ID # 1907021
                                                  James V. Allred Unit
                                                  2101 F.M. 369 North
                                                  Iowa Park, Texas 76367-6568




                                   4   of     4
                        CAUSE NO.   WR-82,810-01

EX   PARTE                                     IN THE   COURT   OF
                                               CRIMINAL   APPEALS OF
MARCO   POLO   MEDINA-GONZALEZ                 THE STATE OF TEXAS




                                 EXHIBIT   A




RELATOR'S TRIAL AND APPELLATE ATTORNEY DENTON B.          LESSMAN AFFIDAVIT
                                      NO. 2012-2077-C2A                          <?%.                 *
EX PARTE                                        § IN THE DISTRICT G0URT/c„,                   ^ &I*
                                                § 54th JUDICIAL DISS^tfJJ4%if^
                                                §
MARCO POLO                                      §     MCLENNAN COUNTY, TEXAS^
MEDINA-GONZALEZ



                          AFFIDAVIT OF DENTON B. LESSMAN

       "My name is Denton B. Lessman. I am over the age of eighteen (18) years, and I am

competent to make this affidavit.     I declare under penalty of perjury that I have personal

knowledge regarding the facts stated herein and they are true and correct to the best of my

knowledge."

       "This proceeding is a post-conviction habeas corpus proceeding thatwas initiated by Mr.

MARCOPOLO MEDINA-GONZALEZ (herein"MEDINA"') in whichhe seeks relief basedupon

his claim that I was ineffective duringmy representation of him in causenumber 2012-2077-C2 in

whichhe was charged, triedbefore a jury of his peers,convicted and sentenced by saidjury for the

offenseof possessionof a Aggravated Kidnapping, Aggravated Robbery

       "In this matter, the Honorable Matt Johnson has ordered that I provide the Court with an

affidavit addressing both.MEDINA'S claimand theissues thatwerespecifically designated by the

Court in its order dated November 12,2014."

       "In order to ascertain the nature of the claim(s) made by MEDINA, I have been provided

with a copy of the 39 pagessubmitted to the Courtby L by MEDINA."

       "Upon reviewing theallegations contained therein, theissues designated bytheCourt, and
reviewing Rule 1.05 of the Texas Rules of Professional Conduct and the comments associated

therewith, I believe that it is necessary for me to disclose the following confidential information




                                                                  IlIllllllllllllNMIIVll
                                                                     16 16 3 6 7 0 1
and that my disclosure is authorized by said rule."

       'The Honorable Trial Court has designated one issue for my response. Specifically,

MEDINA'S allegations that I failed to properly cross-examine or otherwise impeach the testimony

of Juawice Jones (Applicant's supporting brief, page 15). After reviewing MEDINA'S filed

documents, I am unable to determine what MEDINA alleges about my cross examination that he

asserts is deficient. He has failed to allege any facts supporting his claim. I have also reviewed the

cross examination in the reporters record and find no additional issues that would have been

beneficial to cross examine Ms. Jones with."


       "MEDINA'S case is currently under appellate review with a petition for discretionary

review due on or before Wednesday, January 21, 2015."

       "MEDINA has communicated with me regarding the merit of his 11.07 claim on

1/09/2015.1 have attached a copy of said letter hereto and incorporate it in my response for the

purpose of addressing the issues designated by the Court."
                                                                             I* Digitally signed byDemon B.
                                                                               Lessman
                                                                               DN: cn=:Denton B. Lessman, o=*Law
                                                                               Qjflceof Denton B.lessman. ou,
                                                                               «ffl33lessmanAttyS>aoL«im, c=US
                                                                        /J     Date: 20JS.01.15 15:02:39 -06W

                                                       Denton B. Lessman
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                                   XlOi FA 36fAJ,




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                    CAUSE NO.   WR-82,810-01

EX PARTE                         §        IN THE COURT OF
                                 .        CRIMINAL   APPEALS   OF
MARCO POLO MEDINA-GONZALEZ       *        THE STATE OF TEXAS
                                 §




                             EXHIBIT B




  THE STATE'S ANSWER TO RELATOR'S WRIT OF HABEAS CORPUS 11.Q7
                                    No. 2012-2077-C2A


                 In the 54th Judicial District Court
                       of McLennan County, Texas


           Ex Parte Marco Polo Medina-Gonzalez ^iSfe."-*<$>

                            State's Answer to an application
                                f o r w r i t o f habeas corpus



       Pursuant to Article 11.07 of the Code of Criminal Procedure, the State of Texas,

by and through the Criminal District Attorney for McLennan County, Abelino 'Abel'
Reyna, files this answer to the Application for Writ of Habeas Corpus filed by MARCO
POLO MEDINA-GONZALEZ, hereinafter called "Applicant" This is a case other than a
case in which the death penalty was assessed.
       Applicant alleges eight grounds for relief in his application. The application is
the first post-conviction writ he has filed.
           CONCERNING THE NEED FOR AN EVIDENTIARY HEARING

       There are no controverted, previously unresolved facts material to the legality of
Applicant's confinement which would necessitate a hearing. No evidentiary hearing is
needed or warranted under this Application, because any information could be
obtained by affidavit or otherwise.
                        ALLEGATIONS IN THE APPLICATION

       Applicant contends that:
   1) He was convicted on the basis of a false police report;
   2) There was no evidence to support the conviction; and;
   3) He was denied effective assistance of counsel.




                                                                T'T 0T2 4 3
                                      GENERAL DENIAL

       Pursuant to Article 11.07,all matters alleged in the application not specifically
admitted by the State in this answer are denied.
                                ANSWER OF THE STATE

         Based on the Applicant's representations in his Application and Supporting
Brief, it appears that all three of the asserted grounds for relief complain of a scrivener's
error in a police report, which misstates Applicant's date of birth. Other than that, the
assertions, and representations set forth in the Application and Supporting Affidavit
appear to be mere ramblings, setting forth no basis in fact, law, or equity which would
entitle Applicant to habeas relief.
       Answering further, the State would show that the Tenth Court of Appeals
affirmed the Applicant's conviction in its memorandum opinion issued in Cause
Number 10-13-00394-CR, issued November 21, 2014. The deadline for filing a petition
for discretionary review is December 22, 2014. On December 19, 2014, Applicant's
attorney Mr. Denton Lessman, filed with the Court of Criminal Appeals a motion to
extend the time to file the petition for discretionary review. Due to the appellate status
of the underlying conviction, the application for habeas review does not appear ripe for
determination, and should be dismissed.

                                 CONCLUSION AND PRAYER

       The State recommends to the Trial Court that this writ be denied as frivolous, as

there are no legal or factual grounds to support Applicant's claims. Alternatively, this
writ should be dismissed as being prematurely filed.
Respectfully Submitted:
                                           Abelino 'Abel' Reyna
                                          Criminal District Attorney
McLennan County, Texas
219 North 6th Street, Suite 200
Waco, Texas 76701
Phone (254) 757-5084
Fax (254) 757-502.V



Sterling•Harmopr
Chief, AppelMe Division
State Bar # 09019700
                                    No. 2012-2077-C2A             #// ~
                                                                      decee " "" *J
                   In the 54th Judicial District Coj||%r ^ 5?^
                        of McLennan County, twq                      r^USt

            Ex Parte Marco Polo Medina-Gonzalez



                                   Designation of Issues

                                   o n a n application f o r

                                   WRIT OF HABEAS CORPUS



       On Decemberll, 2014, applicant MARCOPOLO MEDINA-GONZALEZ filed an
application for writ of habeas corpus pursuant to Article11.07, Tex. Code Crim. P. with
the District Clerk of McLennan County. The District Attorney's officewas served with a
copy of the application by email. Applicant has alleged facts that, if true, may entitle
him to relief. Therefore, the trial court designates the issues to be resolved herein as:
   1. What are the circumstances surrounding Applicant's claim that Denton B.
       Lessman, Applicant's trial and appellate counsel, provided ineffective assistance
       of counsel and his counsel's reasons and reasoning for his conduct, whether by
       act or omission, regarding AppiicanPs allegations that" he "conspired with the
       district attorney to imprison him?" (Ground 3; Supporting Brief, p. 12)
   2. Whether the performance of Applicant's trial and appellate counsel, Denton B.
       Lessman, was deficient and fell so far below the standard of prevailing
       professional norms, that counsel was not functioning as the counsel guaranteed
       the Applicant by the Sixth Amendment?




                                                                   16 0 2 4 3? 91
   3. Whether Applicant has overcome the strong presumption that Applicant's trial
      and appellate counsel, Denton B. Lessman, rendered adequate assistance and
      made all significant decisions in the exercise of reasonable professional judgment?
   4. Whether Applicant's trial and appellate counsel, Denton B. Lessman's,
      performance fell within the wide range of reasonable and professional assistance?
   5. If Applicant's appellate counsel, Denton B. Lessman's performance was deficient,
      whether his specific deficient acts or omissions, in their totality, were so serious
       as to undermine confidence in the outcome and to have deprived Applicant of a
      fair trial and appellate review—one whose result is reliable—such that there is a
       reasonable probability that but for said deficient performance, if any, the result of
       the appellate review would have been different?
   6. Whether other findings of fact and conclusions of law should be made to resolve
       the issue presented by applicant herein.
                                         ORDER

       The Trial Court determines that these issues can be resolved by affidavit and a
hearing is not necessary. Therefore, the trial court enters the following orders:
       DentonB. Lessman is herebyORDERED to provide this court with his individualt,
affidavit addressing applicant's claims and the issues designated above.
     t Applicant is hereby ordered to provide this Court with any additional
information or proof applicant believes would be helpful to this Court in resolving the
issues presented herein.
       The Clerk of the Court is hereby ORDERED:
       1. To deliver to Denton B. Lessman, copies of:
              a. The application filed on December 11, 2014;
              b. The State's Answer filed on December 22, 2014; and

             •c.   This Order;

       2. To deliver to the Court of Criminal Appeals a copy of this Order.
                                        Page 2 of 3
                                      TIMETABLE

      Unless a continuance is granted, all affidavits and proof shall be filed with the
Clerk of this Court no later than January 21, 2015, 2014. This Court will enter
appropriate' findings no later than February 4, 2015.

      Signed and entered this C<— day of \^ctl* , 2014.




                                         Matt Johnson
                                         Judge Presiding




                                        Page 3 of 3
                    CAUSE NO.   WR-82,810-01

EX PARTE                         §        IN THE COURT OF ORIS
                                 .        CRIMINAL   APPEALS OF
MARCO POLO MEDINA-GONZALEZ       *        THE STATE OF TEXAS




                             EXHIBIT C




TRIAL COURT'S FINDING OF FACT AND CONCLUSION IN HABEAS PROCEEDING
                                                                       ^     •              ,


                                    No. 2012-2077-C2A                   JfV MO, W&

                   In the 54th Judicial District Court \ Mitcfa ^*
                        of McLennan County, Texas                                    nSo£


            Ex Parte Marco Polo Medina-Gonzalez



                      Findings of Fact and Conclusions of Law
                                   o n a n application f o r

                                   writ of habeas corpus



       On December 11, 2014, applicant MARCO POLO MEDINA-GONZALEZ filed an
application for writ of habeas corpus pursuant to Article11.07, Tex. Code Crim.P. with
the District Clerk of McLennan County. The District Attorney's officewas served with a
copy of the application by email. Applicant has alleged facts that, if true, may entitle
him to relief. Therefore, the trial court designated the issues to be resolved herein as:
   1. What are the circumstances surrounding Applicant's claim that Denton B.
       Lessman, Applicant's trial and appellate counsel, provided ineffective assistance
       of counsel and his counsel's reasons and reasoning for his conduct, whether by
       act or omission, regarding Applicant's allegations that he "conspired with the
       district attorney to imprison him?" (Ground 3; Supporting Brief, p. 12)
   2. Whether the performance of Applicant's trial and appellate counsel, Denton B.
       Lessman, was deficient and fell so far below the standard of prevailing
       professional norms, that counsel was not functioning as the counsel guaranteed
       the Applicant by the Sixth Amendment?




                                                                           6 3 6 2 3 1
  3. Whether Applicant has overcome the strong presumption that Applicant's trial
     and appellate counsel, Denton B. Lessman, rendered adequate assistance and
     made all significant decisions in the exercise of reasonable professional judgment?
  4. Whether Applicant's trial and appellate counsel, Denton B. Lessman's,
     performance fell within the wide range of reasonable and professional assistance?
  5. If Applicant's appellate counsel, Denton B. Lessman's performance was deficient,
     whether his specific deficient acts or omissions, in their totality, were so serious
     as to undermine confidence in the outcome and to have deprived Applicant of a
     fair trial and appellate review—one whose result is reliable—such that there is a
     reasonable probability that but for said deficient performance, if any, the resultof
     the appellate review would have been different?
  6. Whether other findings of fact and conclusions of law should be made to resolve
     the issue presented by applicant herein.
FINDINGS AND CONCLUSIONS

  1. Denton B. Lessman, Applicant's trial and appellate counsel, filed an affidavit
     addressing Applicant's claims on January 21, 2015.
  2. The affidavit is found to be true, correct, and worthy of belief. The affidavit is
     accepted for all purposes.
  3., Applicant has alleged no factual basisfor the assertion that his triaLand appellate
     and the District Attorney conspiredin any way againstthe Applicant. Applicant
     complains of a scrivener's error on Applicant's date ofbirth contained in a police
     report. Thiserror had no relevance or bearingon the case, and falls far short of
     showing any sort of collusion.
  4. Applicant's trial and appellate counsel's performance was at all times sufficient
     and fell within the standard of prevailing professional norms so as to afford
     Applicanteffective assistance of counsel as guaranteed by the Sixth Amendment.
    5. There has been no showing that Applicant's trial and appellate counsel rendered
        inadequate assistance in his representation ofApplicant, nor any showing that
        counsel's significant decisions were the result of anything other than the exercise
        of reasonable professional judgment.
    6. The performance of Applicant's trial and appellate counsel fell within the range
        of reasonable and professional assistance.
    7. There are no other issues material to Applicant's claims which need to be
        resolved.

                      RECOMMENDATION OF THE TRIAL COURT

        Therefore, the Trial Court recommends to the Honorable Texas Court of Criminal
Appeals that all relief be denied.
                                 ORDER TO THE CLERK

        Now, therefore, the Clerk of the Court is ORDERED to immediately transmit to
the Court of Criminal Appeals all necessary documents not heretofore transmitted, and
a Clerk's Summary Sheet and a certificate reciting the date upon which this finding was
made, and this order, finding and recommendation.
        If the Clerk has received any communication from Applicant before such
transmissioh, a copy of said communication shall also be sent to the Court of Criminal
..Appeals....       -,.
        A copy of this Order shall also be mailed to applicant at the address shown on
the application.

        Signed and entered this c-A day of ^fi^ »



                                           Matt Johnson
                                          Judge Presiding
