  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
TO THE HONORABLE COURT OF CRIMINAL APPEALS:



      RELATOR, MATHEW PA YAM 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
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 Exparte Hargett, 819 S.W.2d 866, 868 (Tex. Cr. App. 1991); Ex

parte Wiley, 949 S.W.2d 3,4 (Tex. App. - FortWorth 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
corpus. Tex. Const, art. V, §8; Tex. Gov't Code Ann. §24.011; Tex. Crim. Proc.

Code Ann. art. 11.05; Exparte 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 dutyby 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.
      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. Exparte

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 Exparte

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
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)

("[Ajdmittedly, 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 thatdefendant was entitled to writof 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.); Exparte 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 thatthe 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
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 Exparte 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 Exparte 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, hemay appeal it if he so chooses. If thecourt 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); 7« 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 ofAppeals, 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 ofhabeas 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 argumentthat 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 Exparte 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.'

       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 shoppingtrip through the district




1In 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 writof 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.").



2Undersigned 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 byan 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

                                                    Isl R. SCOTT SHEARER
                                                    R. Scott Shearer




                                         18
