April 24, 2015

                                                          FILED IN COURT OF APPEALS
                                                            12th Court_o^ADpealsJpistrict
Cathy 5. Lusk, Cleric
12th Court of Appeals
Suite 354
1517 W. Front Street
Tyler, Texas 75702           \a-V5-oo 11&<£-                     TYLER 1 fcXAb
                                                            CATHY S. LUSK, CLERK |
Re: Michael Lynn Eaton
    Criminal Application tor Writ of Mandamus
Frcau 115th Judicial Dist. Court, Upehur Count*, Tx.
Cause nc. 15074



Dear Court Clerk;



     Enclosed with       thie cover letter, please find Relators Abdication for Writ
of Kandassua (4 pe^ea)

     Please consider this an original application and open a file tor sax*.

     Relator certifies that all parties subject to this application for Writ         of
Mandamus have been served with a copy of this application by U.S. Mil.


     If you have any        questions   or concerns please do not hesitate to contact
we at the address or phcrie number Hated below. I thank pm in advance for
j'our tins and considerations in processing ray application.


Sincerely,



Michael Lynn Baton
Relator, ^ro-se
1652213
Beto Unit    1391 FM 3328
Tennessee Colony, Tx. 75860
(903) 928-2217


cci Carolyn Parrot, Upshur County District Clark
    Deanna Drennan, Court Reporter for Upshur County
    Upshur County District Attorneys Office
    file
                                    cwB.ia-i.T-re/tfi-cg-
MICHAEL LY»i EATOW,                                         IN THE 12TH COURT OF APPEALS
Relator

v.



115TU DISTRICT COURT OF UPSHUR COUNTY,       §
CAROLYN PARROTT, DISTRICT CLERK              \
DhAtm DREMsAK, COURT REPORTER,               f
Respondents                                  I              J              jr;
                                                                           fiikq
                            APPUCA1ION FOR WRIT OF W^HLEATHYS^U^^
      TO THE HONORABLE JUDGES OF THE TWELFTH COURT' OF APPEALS;     COMES NOW, hichael

Lynn Eaton, Relator ano files this Application for Writ of Mencamue directing the
Respondent    sitting   Juc^e of the 115th Judicial District Court of Upshur County,
Texas to instruct/order the Respondent District Clerk and Court Reporter to choose
one   of   teh three (3) methods offered to thee tc provide Relator with the copies
of relators Records relating to his conviction in Cause no. 15074 aIon* with a MM
of the Transcript of the Plea Hearing in this cause of action, so that Relet** can
prepare and perfect hifts Appeal of his conviction via an 11.07 Writ of habeaa corpus.

                                             I
                                       JURISDICTION

      in* iith Ccust ex Appeals has exclusive and original jurisdiction over this
Mandamus Petition pursuant to Art. 5§8 of the Texas Constitution en© yajMMMt to
the Texas government Code §24.007 and 24.309.

                                            IX
                HISTORY OF PREVIOUS REQUESTS / EXHAUSTION OF REMEDIES

1.    On August 31, 2012, the Upshur County Clerks office referred Relator to
      contact the Court Reporter to request a copy of his Court Transcripts.
2.    On February     19,   2013,   Relator requested a ptg* and cost summary from the
      Upshur County District Clerk and Court Reporter.
3.    On March 2o, 2C13, Relator submitted a follow-up letter to the Upshur County
      District Clerk after receiving no response from either office.
4.    On April 15, 2013, the District Clerk cited a 1.00 per pe*e cost     tor copies
      and ayain referred Relator to contact the Court Reporter.
5.    On April 21, 2013, Relator submitted (a^ain) letters to both the District
      Clerk and the Court Reporter requesting a page ano cost summary (ie to
      provide the number of pages and costs per document),
6.    On May 6, 2013, Respondent, District Clerk again quoted the l.oo per pays
      cost but again failed to provide the page count or summary requested by
      Relator. Again the Court Reporter failed to respond to Relators request.
7.    On May 22, 2013, Relator once again clearly pointed out to the District
      Clerk   that   he needed a page arid cost summary and needed this "total* in
      order to affect a withdrawl from his Inmate Turst Fund Account.
8.    On July 8, 2013, after further inquiry was not responded to, filed objection
      to the clerk and Reporter fees in motion form along with an attached affidavit
      of inability       to pay costs         (In    Forma Pauperis). Wo response was made by
      either the District Clerk or the Court Reporter.             The notion was not heard.
9.    On December 23, 2013, after researching the options I had, prepared and
      submitted an application for Writ of Mandamus, including six exhibits and
      •ailed sane to the 115th District Court arid sending copies to the Upshur
      County District Attorneys office and the District Clerk. My Mandamus was
      refused by the District Clerk, and thus was n»vmt heard or considered.
10.   On    September    26,     2014,    again after additional research and consultation,
      and again after' no responses by the District Clerk/Court Reporter or rulings
      by the Court, Relator again sent his "proposed* three options for the Clerk
      to choose free so as to previde delator with his requested copies of Records
      and Transcripts.         The Options were 1: A personal      copy   (free),   2:   a copy
      on loan, or 3: to pay .10 per page for copies.
11.   On October 14, 2014, Relator received his FIRST response from the court
      Reporter. The Court Reporter did not "choose" one of the three options,
      and provided Relator with an "estimated cost of $2,00u.00" for the Court
      Reporters record without a page or cost summary or any page counts. The Clerk
      die not respond to Relators request nor choose any of the three options. It
      does not appear that Relators In Forma Pauperis was processed.
12.   On January 8, 2015, Relator filed             formal   motions   in the Trial Court one
      motion titled "Motion Requesting Preservation of Evidence" and the second
      titled "Motion Requesting Transcripts". Relator sent copies to the District
      Clerk, the Court Reporter, and to the District Attorneys Office. Relator
      formally requested that his motions be brought before the Court and that
      a HEARING be held to consider and rule upon his motions. Relator did not
      receive a reply           from the     Clerk or Court lUfiiatai'     No hearing was ever
      scheduled or held on his motions.

13.   On March 20, 2015, Relator prepared and sent a letter directly to the Judge
      of the 115th Judicial District Court, the Honorable Lauren Parish, requesting
      that the Judge look into and inquire as to why Relator was not getting
      the copies necessary for his Appeal and as to what the problem was for
      the Clerk or Court Reporter in choosing one of the three options. Mo response
      was received from the Judge by the Relator.   The Relator has heard nothing
      further from the Court Clerk or Court Reporter.             No hearing has been held.

                                                 Ill
                                    ARGUMENT AND AUTHORITIES


      Pursuant to Texas government Code $52,047, it states (a) "A person may apply
for a transcript of ten evidence in a case reported by an official court reporter*
The person     must     apply    for     the transcript to the official court reporter. The
official court reporter SHALL furnish the transcript to the person 'no later than
the 120th day after the date the; 1) application for the transcript is received
by the reporter; and 2} transcript fee is paid 'or the person eetablishes indigency
as provided by rule 20 of the Texas Rules of Appellate Procedure.' Relator                fully
complied    with TRAP Rule 20 and has submitted his application to proceed In Forma
Pauperis.    Relators claim of indigence has not been contested.            The District Clerk
appears not     to have complied with TRAP Rule 20 and has not sent a copy of his
 In Forma Pauperis to the Court Reporter (based upon her response to quote Relator
 a cost of $2,000.00 for his Court Records)(Id. #11 herein).             Since the Respondents
 have not timely filed a contest to Relators In Forma Pauperis Application , Relators
 allegations     of   indigence      "will   be   deemed   true" and Relator "will be allowed
 to proceed without advance payment of costs". TRAP Rule 20. See             also   TRAP Rules
 40(e)(3) and 53(j). Relator has made a prima facie showing of indigence. Horn&by v.
 State, 65 SW3d 801 (Tx. 2001) See also. Mcfatridye v. State, 309 SW3d 1 (TCA 2010).
 "An indigent criminal defendant has the constitutional ri*ht to a free appellate
 record in his first appeal of right" quoting Scott v. State, 80 SW3d 184 (2003).
 (App. 10 2003), See also: Turner v. State, 71 SW3d 928 (App. 10 2001)(USCA amend, 14)
 "Trial      court Judge     had    authority     to hold hearing on defendants motion for a
 free reporters record" TRAP Rule 20.2. </*»«• ir^ fipy*M>r. g, .state. 55 SW3d 625.
 According to Sparkman Relator must request Record from Court Reporter and request
 a hearing en his application.         Relator has cccrpiieo with both requirements.     It is
 well    settled and "there          is no question that an indigent defendant is entitled
 to a free transcription of prior proceedings for an effective defense or appeal."
 quoting Lav-son v. State, 696 SW2d 828 (Tx.App. 13 1995)/ See also. Britt v. Worth
 Carolina, 92 Set. 431,433 (1971), Griffin v. Illinois, 76 Set 565, Biliie v. State,
 605 MM 556,565 (TCA 1980), and Anaour v. State, 606 SW2d 891,4*93 (TCA i960).
        In the- case of White v. State, ftS SW2b 15 (App 8 1990) this Texas Appellate
 Court cited Britt where         the U.S.    Supreme    Court   identified two factors in the
 establishing     of a need for transcripts and records.         They said that 1) the value
 of    the   transcript     of   the former trial to the defendant in connection with the
Appeal or trial for which it is sought, and 2) the availability of alternative
devices that would fulfill the same function as the transcript Britt @434. Britt
made it clear that it will be assumed that the transcript is of value and the
"State bears the burden of disproving either of the above mentioned factors."
     Appellant states for the record that he has no other means of obtaining the
documents, records, and transcripts but through the Clerk and Court Reporter.
Relator has provided three options to chooe from to provide the documents he
requests, including a reduced fee which Relator , even though he is indigent,
has agreed to pay.        Relator    , at    the least     believes he has met the burden to
be excused by statute from paying these fees by virtue of his affidavit of
indigency. See: In re Lee Children, 36 SW3d 702 (App. 10 2001) Relator believes
that    the denial     of    his requests represents an unreasonable interference with
his riflht to pursue hsi appeal and his access to the courts. (Tx.Const. Art 1$13),
(USCA Amend. 1). Seat Dallas County v. Sweitser, 881 SW2d 757 (App. 5 1994).
Relator will be filing his request for leave to Appeal with his Habeas Corpus.
                               RELIEF REQUESTED / PRAYER

                   PREME81S CONSIDERED, Relator, Michael Lynn Eaten PRATS that this
Honorable Court of Appeal OUK hsi        application      for   Writ of Mandamus by virtue
of the facte and arguments contained herein, that they agree that Relator nee no
other     remedy   at law to compel the Trial Court to perform a ministerial function
to provide him with the papers to prosecute his appeal and that this Court ORDER
the Trial Court, District Clerk, and Court Reporter to choose one of three options
offered by Relator and forthwith provide him with the copies ne has requested.

                                                                Respectfully submitted,

                                                                Michael KgM Eaton
                                                                Relator, Pro-se
                                                                1652213
                                                                leto Unit   1391 FM 3328
                                                                Tennessee Colon*, Tx. 75880
                                                                (903) 92S-221?
                                  UNSWORN DECLARATION

     I,    Michael Eaton,    do hereby swear under the penalty of per^ur^ that the
facts and statements mace herein are true and correct.

     Sworn and signed on this the H. day of gjftjs ,2015, __
                                                     •^           M.



                                 CERTIFICATE OF SERVICE

    I, Michael Eaton, do hereby certify that I placed a copy cf this "Mandamus"
into a proper wrapper with sufficient pre-paid U.S. first class postage aitaxed,
and adressed same to the parties listed here below and placed same into the
available mailing system used for such legal mail.                  ffl/foLA_M/Z^L-
Certified on this the ^day of fiffiu , 2015.                      Michael Lyi
SENT TO:


CATHY S. LUSK, CLERK      TWELFTH COURT OF APPEALS
SUITE 354, 1517 W. FRONT STREET,     TYLER, TEXAS    75702
CAROLYN PARRCTT, DISTRICT CLERK AND DEANNA DkENNAN, COURT REPORTS*.
115TH JUDICIAL DISTRICT COURT OF UPSHUR COUNTY
405 E. TITUS STREET, PC BOX 1052 CILMRE, TEXAS         75644-1052
UPSHUR COUNTY DISTRICT ATTORNEYS OFFICE, 115TB JUDICIAL DISTRICi COURT
405 E. TITUS STREET, GILMER, TEXAS     75644-1052

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