hom. 5b.».t>!itj kott*^
                                                                      n&WS-ol

                                                                 nn RECEIVED IH
                                                                 COURT OF CRIM|NAL APPEALS
      RE:    QUESTION OF LAW/DISCRETIONAL AUTHORITY
                                                                            0 1 2015

               DEAR to$<kei(er                                      AIW^,. a ^.

                  UNDER ART.11.05 T.C.C.P.,ANY JUDGE OF THE COURT OF CRIMINAL
            APPEALS HAS THE POWER TO ISSUE THE WRIT OF HABEAS CORPUS;AS UNDER
            ART.11.0 7 §5,THE COURT OF CRIMINAL APPEALS "MAY DIRECT THAT THE
            CAUSE BE CHECKED AND HEARD AS THOUGH CRIMINALLY PRESENTED TO SAID
            COURT OR      AS   AN   APPEAL".
                  YOUR HONOR HOLDS EXCLUSIVE DISCRETIONARY AUTHORITY TO REVIEW
            MATTERS RELATIVE TO VIOLATIONS OF CONSTITUTIONAL DUE PROCESS.              IN
            EFFECT,ART.11.04 STATES THAT "EVERY PROVISION RELATING TO THE WRIT ,
            OF HABEAS CORPUS SHALL BE MOST FAVORABLY CONSTRUED IN ORDER TO^GIVE
            EFFECT TO THE REMEDY,AND PROTECT THE RIGHTS OF THE PERSON SEEKING
            RELIEF UNDER IT-". WITH THIS SAID, I RESPECTFULLY IMPLORE YOUR DISER9
            ETIONAL AUTHORITY TO REVIEW, AND INTERVINE,AS APPROPRIATE TO THE FOLr-
            LOWING: "(QUOTING RULE 79.2(a) A MOTION FOR REHEARING AN ORDER THAT
            DENIES HABEAS CORPUS RELIEF UNDER CODE OF CRIMINAL PROCEDURE,ART.
            11=07 OR 11.071,MAY NOT BE FILED. THE COURT ON ITS OWN INITIATIVE
            RECONSIDER THE CASE.-AMENDED JULY 12 ,2011 ,EFF .SEPT .11 ,2011-T .<R. ft. P.)
                 A WRIT OF HABEAS CORPUS UNDER ART.11.07 WAS FILED ON SEPT.18,
            ,2012(WRIT NO.WR-78,478-01). THE COURT OF CRIMINAL APPEALS DENIED
            WITHOUT WRITTEN ORDERPON OCT.24,2012,AND A PETITION FOR RE80NSIDERA-
            KTONE.WASWSUBSEQUENTLY FILED 'ON ^^^15^2012 BUT. WAS NOT ENTERTAINED
            §Y THIS COURT.
                   THE GROUNDS WITHIN SAID WRIT ENTAILED,ONE:INEFFECTIVE ASSISATAN-
            CE OF COUNSEL; AND TWO:A VIOLATION OF APPLICABLE RULE OF LAW-21.9^
            TF.XKS RULES OF COURT/RULES OF APPELLATE PROCEDURE._
                    ALTHOUGH THE STATE EXCERCISED THEIR RIGHT TO DENY THE APPLICA
            TION UNDER THE AUTHORITY OF ART.11.07 §3*-b)./NO EXPLANATION OR REASON
            WAS GEVEN TO REJECT EITHER GROUND AS MERITLESS. THE APPLICANT SOUGHT
            TG EXCERCISE RIGHT TO A REMEDY OF LAW. ENTITTLED BY THE CONSTITUTIO
            NAL EcDGHT" TO DUE'PROCESS, BUT THE REMEDY SOUGHT WITHIN THE 11.07 APP
            LICATION WAS MISTAKENLY OVERLOOKED. NO EXPLANATION RELATIVE TO" THE
            RECOMENDATION OF THE STATE TO DENY EACH GROUND WAS GIVEN. ALTHOUGH
            APPLICANTS GROUND OF A VIOLATION TO RULE 21.9 HAD MERIT AS CONCURREB

                                                  (1)
BY THE UNITED STAES DISTRICT COURT FO THE WESTERN DISTRICT (.SEE
ATTACHMENT A.) THE COURT OF CRIMINAL APPEALS FURTHER DENIED THE
WRIT AND BASICALLY AFFIRMED 'THE TRIAL COURTS NEGLECT TO ADDRESS A
A   VALID   CLAIM.

        IT IS WITH THIS SUSTENANCE THAT THE APPLICANT RESPECTFULLY
REQUESTS THAT VOTTR HONOR TAKE APPRPRI ATE:" DISCRETIONARY AUTHORITY
TO REVIEW WRIT. APPLICANT SEEKS TO EXHAUST HIS RIGHTFUL REMEDY OF
LAW AND SEEK RELIEF FOR A VIOLATION AGAINST HIS RIGHT OF DUE PROC
ESS. ALL IS WANTED IS THAT THE STATE ANSWER MY WRIT,AND GIVE SUPPO
RTING REASONS TO THEIR DENIED OF MY GROUNDS SO THAT I MAY SEEK REL
IEF IN A HIGHER COURT.   IN A PROPER EXAMINATION OF MY GROUNDS THIS
HONORABLE COURT SHALL DETERMINE THAT THE TRIAL COURT ABUSED ITS DIS
CRETION IN DECLARING A MISTRIAL AS TO ITS ENTIRETY,WHEREAREAS,UNDER
RULE 21.9 ADOPTED BY THIS HONORABLE COURT,RESENTENCING WAS THE APP^
ROPRIATE RECOURSE AT LAW. APPLICANT PRAYS THAT YOUR HONOR CONSIDER
THIS   REQUEST.


                                              RESPECTFULLY       SUBMITTED,




                                                          fCOEUNIT
                                                    rST   HWY.85
                                             DTTLEY,TEXAS        78017




                                   (2)
Case 3:13-cv-00015 Document 4                                               Filed 01/29/2013CPage 1 of 3

                           IN THE UNITED STATES DISTRICT COURT
                            FOR THE WESTERN DISTRICT OF TEXAS
                                           EL PASO DIVISION


  JUANMUNOZ,                                           §
  TDCJ# 1467005,                                       §
      Petitioner,                                      §

  v.                                                   §           EP-13-CV-15-PRM
                                                       §
  BRAD LIVINGSTON,                                     §
  Executive Director, Texas Department of              §
  Criminal Justice,                                    §
          Respondent.                                  §

                             ORDER FOR RESPONDENT TO ANSWER

          In apro se petition for awrit of habeas corpus pursuant to 28 U.S.C. §2254, Petitioner
  Juan Munoz ("Petitioner") challenges his convictions for three counts of aggravated sexual
  assault by ajury in an El Paso County state court.1 Mindful of Petitioner'spro se status,2 the
  Court understands him to assert.that (1) the trial court erred when it declared amistrial during the
  punishment phase of the trial and ordered are-trial ofthe entire case, and (2) his appellate
  counsel provided constitutionally ineffective assistance when he failed to raise the trial court's
  error indeclaring amistrial during the punishment phase and ordering are-trial ofthe entire case.
          Upon review, the Court concludes that summary dismissal ofthe petition is not
  appropriate. Accordingly, the Court enters the following orders and advisories:
          1.    . Service on Respondent: The Court ORDERS the Clerk of this Court to serve a
  copy of the petition and this order upon counsel for Respondent, the Texas Attorney General. All
  documents shall be sent to the attention ofthe Chief, Postconviction Litigation Division.

          1State v Munoz, Cause Number 20060D04737 (210th Dist. Ct., El Paso Cnty. Tex., Sept. 25,
  2007), aff'd, No. 08-07-00304-CR, 2010 WL 546676 (Tex. App.—El Paso, Feb. 17. 2010, pet. dism'd).
          2See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding/?/-^ pleadings to less stringent
   standards than formal pleadings drafted by lawyers); see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir.
   1985) (explaining that liberal construction allows for active interpretation ofapro se pleading to
  encompass any allegation which may raise aclaim for federal relief).
                                              ATTACHMENT (A)
