                                             Cause No. 15 305-C


Gilbert S. Damian                                                            Th~ cJB,e     District::'Court
                                                         §                          cument contains some
TDCJ-ID 3 382329,                                        §\                  pages ~hat are of poor quality
                                                        §'                  at ~he time_ nf im.:anill::ili!:\1
v.                                                      §
                                                                                Walker LOUh~v0e~~·
Walker County Distr~ct Clerk:                           §
In Her Official Capacity,                               §                         278Th Judicial District
                                                        §
                                                        :§                                      RECEIVED IN
                                                      §                               COURT OF CRIMINAL APPEALS
A.                RLAINTIFF"S ORIGINAL APR..ICATION FOR WRIT OF MANDAMUS
                                                                                                  MAR 06 2015
 TO THE HONORABLE JUDGE OF SAID COURT:

 COMES NOW, Gilbert Damian,Relator,pro se in the above-style and numbered cause Ab~1\cm>m,~~

 this original Application For Writ Of Mandamus,pursaunt to Article 11 .07 Sectiopn 3(c) of the Texas

 Code of Criminal Procedure,and would show the Court the following:

 B. RELATOR                                                  I.

 1 .01 Gilbert Damian,TDCJ#382329 is an offender incarcerated in the Texas Department of Criminal Justice

 and is appearing pro se, who can be      located~a:t   Polunsky Unit, 3872 FM 350 South, Polk County, Texas 77351

 1 .02 Relator has exhausted his remedies and has no other adequate remedy at law.

 1 .03 The act sought to be comp-lelled is ministerial not discretionary in nature.TCCP Art. 11 .07

     Section 3(c) requires Respondent to immediately transmit to The Court Criminal Appeals a copy               ~f


     the application for writ of habeas corpus,any answers filed,and a certificate reciting the date

     upon which that finding was made,if the convicting court decides that there are no issues to be

     resolved.No copy of the application for writ of habeas corpus,any answers filed,and a certificate
         '
     reciting the date upon which that finding was made have been transmitted to The Court Criminal

     Appeals. Had such documents been•-; transmitted to the Court Criminal Appeals by Respondent as re-

     quired by statute,relator would have recieved notice from The Court Criminal Appeals.

     C       RESPONDENT                                 II.

     2.01 respondent,Gilbert Damian,in her/his capacity as District Clerk of Walker county,Texas has

     a ministerial duty to recieve and file all papers in a crinminal proceeding,and perform all other

     duties imposed on the clerk by law pursuant to TCCP Art. 2.21 ,and is responsible under TCCP 11.07


                                                              1
           Sec. 3(c) to immedeiately transmit to The Court of Criminal Appeals a copy of the

9Pplication for writ of habeas corpus,any answers filed,and a certificate reciting the date upon
'
which that finding was made if the convicting court decided that there are no issues to be resolved.

The District Clerk,Walker County may be be served at her/his     ;~place   of business at Walker County,

Huntsville,Texas 77342.

                                                III.
D.   VIOLATION OF ARTICLE 11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

3.01 The Responde4nt violated Article 11 .07 section 3(c) of the Texas Code of Criminal Precedure

by failing to provided a copy of the application for writ of habeas corpus,any answers filed and a

certificate reciting the date upon which thattfinding was made to the Court of Criminal Appeals

within the time presribed by law and   with~n    a reasonable time from the date on which the documents

were requested to be transmitted.

3.02 requests for the transmittal of the application for writ of habeas corpus,any answers filed,

and a certificate reciting the date upon which that finding was made were made by Relator to District

Clerk,Walker County, letters dated August 19,2009 State's Motion to Designate Issues and a Proposed

Order Designating Issues purauant to Article 11 .07 Section 3(c) of the\! Code of Criminal Procedure

True and accurate copies of the above Document s are attached hereto as Exhibits"A"i through 11 811

and are incorporated by reference herein for all purposes.

'B.03 To date Relator has recieved no response from Rependent regardingsRelator's request for

transmittal of a copy of the application for writ of habeas corpus,any anwers filed and a certificate

reciting the date upon which that finding was made to the Court of Criminal Appeals.

3.04 As is clear from Relator's letters,Relator has repeatedly put Respondent on notice that Relator

seeks the transmittal of a copy of the application for a writ of habeas corpus,any answers filed,and

a certificate reciting the date upon which that finding was made to the Court of Criminal Appeals

and that such records are required by The Court of Criminal Appeals to act on Relator's writ of habeas

corpus.Relator has gone well beyond any requirement or      obligationsim~ose8upon    him by The Texas Code

of Criminal Procedure.In contrast to Relator's effort'.'lRespondent has wholly failed to comply with

the Texas Code of Criminal Procedure,Article 11.07 Section 3(c),is acting in bad faith,and has also

                                                       2
fai£: aJifEJrd Relator the prfessional and cOTIIT[)n courtesy of any written responses to his correspondence
    7




and requests.

3 •05 Article 11 •07 Section 3(c) clearly states that " [9;;];f the convicting court decides that there:

are no such issues,the clerk shall immediately transmit [emphasis added] to the Court of Crimininal

Appeals a copy of the the application any answers filed and a certificate reciting the date        upon~which


that finding was made.Failure of the court to act within the allowed 20 days shall constitute such a

finding."Texas Code of Criminal Procedure Article 11.07 Sec. 3(c). Respondent is in violation of this

procedure,nministerial duties,and thus the laws of this state.

                                                      IV.

D. PRAYER FOR RELIEF

 WHEREFORE,PREMISES CONSIDERED Relator,Gilbert Damian,pro se,respectfully request a finding that the

 Respondent did not transmit documents to the Court od Criminal Appeals within a reasonable time after

 the date they were requested and that Relator brought this litigation in good faith and has substantially

 prevailed.Relator prays for an Order directing Respondent to trnasmit copy of the application for writ

 of habeas corpus,any answers filed and certificate reciting the date upon which that finding was made

 to the Court of Criminal Appeals as directed in Artic:!.e·;11 .07 Section 3(c) of the Texas Code of

 Criminal Procedure ahd as requested in Relator's letters (Exhibits"A" th4gh 11 8 11 ) .
                                                                     i     ..,-   II
                                                                Res 'J~8tfuHy;Swbmitted,

                                                            8            ~~~-------------~
                                                                         L/




                                                  3
THE STATE OF TEXAS ·;                            §
                                                 §
COUNTY OF POLI<ER                                §
                                                 §
E. AFFIDAVIT
                                                                           /1
~swe~rre~ oath the facts      and    allegations in the ab~~IT OF MANDAMUS are true


                                                     ~>£~-~
                                                      'RELATOR
                                                                                              _)

F.CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above APPLICATION FOR WRIT OF MANDAMUS was served on February
                                                                                /
25,2rn5 by placing a copy in the U.S. Mail addressed To:

on this the day of February 2rn 5.

  Court of Criminal Appeals
      P.O. Box 12308
   State Capital of Texas
  Austin,Texas 78711*2308*USA




                                                4
                                    CAUSE NO :11 5305C
                                                 ·----

Gilbert Damian                                   §             IN THE 27BTH JUDICIAL
TDCJ-ID #382329                                  §
                                                 §
                                                 §
v.                                               §             DISTRICT COURT OF
                                                 §
UNKNOWN COUNTY DISTRICT CLERK,                                  WALKER COUNTV,TEXAS
                                                 §
IN HER OFFICIAL CAPACITY,                        §
           RESPONDENT.                           §
                                                 §
                                              ORDER

 On this day,came to be heard the foregoing Relator's application for writ of Mandamus and it

 appears to the Court that the same should be:



o~;~    GRANTED




 IT IS THEREFORE ORDERED THAT the District Clerk shall immediately transmit to the Court of

 Criminal Appeals a copy of the application for writ of habeas corpus,any answers filed and

 a certificate reciting the date upon which trnsmittal was made.

 SIGNED on this the __day of ______,,_20_ _•




                                                         PRESIDING JUDGE




                                             5
"EXHIBIT A &8"
                                                THIS TIME IS CONSECUTIVE
          On l:.lte l,__'f~/.day of x~~~)---• 19_3_~ Lll<:' above refer.8tiC'?r:l CclJ.I!=:"' ~·lilS
  called l:.o !:rial.           The parl:.ies appeared .:I!> fr)llow?:                     !:.)1e Sl:.ai.,e arpear<:>d
  by i~_'s Speci<~l Prosecul:or, and U1'=' defenr:iant                             ~_:_(_~-t'~f:.__@~.~_~-~-----'
                                                                                       1

  ,, r £' e.:tr ed in person w i I: h his a I:!: or 11 ey of r ,..<:or d IZ_./t·_;_e.t..l/._(_ ___ --~C-~.·.c_4.,..:Q_____ .
  1\olh parl:.ies announced ready for trial, at;rl !:.l1<? d<:-,fendan!:, ltaving
 -w.,ivl?d his right ~o a jury trial. entered IIi~ ple.;~_ of. gLTty to thc-
  offense of /J;-f.-L-~r::::.!!:..!.~__.dr___:!_~~_!{&7__a_~---__..:;-·-·- --~...!:"'~_c_(;__L:::.:::.~----·-·~g_~~c- . _ ,
· r::•.)mmitted on :7_~_(_1,/__ J___,l ___ , 19R.              i\fl:l?r !:he reading of l-_he indicl:.rnt:?.llt
  ~vrls waived and eV"idt:?.nce for !:he Slate and the Defendant was subrnill:.ed
  and concluded, and argu1nent of counsel for· l:he Stale and DefP.11da1d: was
  submitted and concluded, and argument of counsel for lhe St.are e1nd
  Uefendanl:. was heard and concluded, the Courl:. mad the following
  findings:

  TilE DEFENDANT IS GUILTY AS CHARGED IN Tl IE I NDI CT11ENT.

   Thereuron, the said Defendant having previously requested that. the
   C•.nt r t a s s e s s t h e p r o p e r pun i s h men t. , a n d u ron h e a r i n g a 11 1:. h e e v i den c e
   submitted by and on behalf of the Sl:.at.e and Defendant, the Court is of
   Ute opinion and so finds l:he proper punishment of the Defendant s.hould
  be/confinO?menl:. in the Te.xas Depar tmenl:. for a !:erm. of :.._ _ _J:_!.·.,k ________ _
    (_G:,.._) years.
   T1: is l:.heref_9,re CONSIDERED, ADJUDGED At~D ORDERED by l:lte Court tlt<tt tlte
  l)efendant, f.c.            .!..._!JJ..c_C_ _Q_c~ ,·.,:::---=:::::._ ___ , is gttilty of tl1'?. offense of
/l;{-f.:t::Y-~..£_/_d----4.-~..>L~e!..._!~-~-~-.,;...--b_uL~-LLJ!.£!::.:::.::::- c omrni t 1:. t:?.d on 2~--/-~_/_J__ ___ , 19 Iff:,
·and that he be punished by confinement in Ute Te>cas Depifrt.ment 0f
  r.>,rrer:-:tions for a term of _d_/_2_"'_ _____ -__ ____ (_~ years, and that sur.-h
  ! " tt li s l1 me 11 t. be c a r r i e d i n I: o ex e c u t i on i 11 t· l1 e ma n n ""r p r e. s c r i bed by J. i1 w .
   Jt is further ORDERED by l:he Courl:. that lhe ,Judgrnent and Sen!:enr:-:e 111
  l:his cause shall began to run after l:he S0ntence of la\o.' in cause
  no. _j_~_/_/_L_:--- __ . received on I: he _j{/_(.__ day of .Q~_c;_f-:::.i~---. 191__2_, i 11
  !.II'.? .2...J.cd-D1 s t r 1 c t          Court of g_l.__c_~..-LJ:_i&. _____ C oun t.y , 1 e>{a s             I       for t. he
                                                                           __
  0 f fens e of /l~.c_t:3_~_f_~__ !Z;,._,;~~_jf.__ ~_~_L c?__._ .. · for wI 1 .i. c h                       I: h '?. de f e nrl.:t 11 I:
  received t~~"-W~!:._<'!:D years, has ceased h) oper<~te.
  The Defendant is hereby remanded in jail until l:lte dir·ections of l:.ltis
  s etd: enc e can be obeyed.




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                        STATE OF TEXAS                                                                    IN HIE         D I STG I CT COUrn        or
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                                                                                                       l_:l_f:._·TH ~IUDICIAL            OI.STRICT
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                                                                 W~l VIER OF JURI TRIM.•

                        ,_ll.IDGE
                        rRESIDING: .£.:::_"'::!.//'-"':._ _ _/? r-V.r..!_ _________ _

                        l\ TTORNEY FOR                                       l\TTORt-JEY FOR
                        STATE : .;:::_.-, ~.:::..lf__ Afi::::_.:!_q_~------- DE FE t~ DA IH : _.L-;_.f.L.z..~_f._d{__ _a(:_~. e ~ L__

                        OfFENSE
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                        f11Wlt~G                                 4 / //-1-          .
                                    ON USE OF DEADLY FORCE: ----L~/-~-._-----------------------·------·

                        l~l_!IH S! it·1EHT 1\1-llJ                                   [)l\TE lU
                        rLl\CE OF COt-IFINEJ·IENT:            1__,__!2~__,_          t:UI111 HIC F::        SEE DELO'ti /

                        l!l\TE SEIHENCE                                          .
                        l i·IFOSED: __:.)A_&'-_j._-y__!__J_z_Z}_________             COST:         --0-
                                                                                 /
                        T liiE
                           SPECIAL PROSECUTION UNIT
                                     340 Hwy. 75N .. Suite A
                                     Huntsville. Texas 77320
                                         (936) 291-2369
                                       Fax (936) 291-0845




                                           August 19, 2009


 Kimberly Blackwill
 % Walker County District Clerk
 301 Courthouse
 1100 University Ave.
 Huntsville, Texas 77340

       Re: Cause No. 15305C(A-1), Ex Parte Gilbert Damian

 Dear Kimberly:

      Enclosed for filing please find the State's Motion to Designate Issues and c:·
Proposed Order Designating Issues. Please present these to the judge for his
consideratfion a tong witrt t.ile app~ication for habeas corpus. By copy of this ~etter. pre
se applicant is being notified of this filing.

       Thank you for your assistance with this matter. If you need anything further, please
caiL

                                          Sincerely,

                                          . l .;      r·.        ,-·     - -)r I I
                                          .
                                          l
                                               .
                                               \
                                                 _,__..._._,
                                                   \. \ . ; \   'l , .
                                                              ,_U-=-'--.  _A./    r .-L .·''--
                                                                           ,......_l.l -v
                                         Melinda Fletcher, Appellate Attorney
                                         Special Prosecution Unit
                                         State Bar Card No 18403630

                                         P 0 Box 1744
                                          Amarillo, Texas 79105
                                          Phone 806 367 9407
                                         .Fax     806 ·367 9407

cc: Gilbert Damian
                                     CAUSE NO. 6430-A

  EXP.AR'fE                                         IN THE 278rn JliDhCIAL

                                             §      DISTRICT COURT OF

  GILBERT DAMIAN                             §      WALKER COUNTY, TEXAS


                      STATE'S REQUEST TO DESIGNATE ISSUES


  TO THE HONORABLE ..ruDGE OF SAID COURT:

         CO:M:ES NOW, the State of Texas, by and through Melinda Fletcher, post-

  conviction attorney for the Special Prosecution Unit, and moves this Court to enter an

  order designating issues of controverted, previously unresolved fact to be resolved. On

 July 23, 2009, Gilbert Damian filed an application for writ of habeas corpus pursuant to

 TEX. CODE CPJM. PROC. art. 11.07, seeking to challenge his final felony conviction :tor

 aggravated assault

        _t>..n application filed under a..rt.icle 11.07 provides for a prompt review by the trial

 court to determine whether the application alleges any facts, which if true, couid entitle

 the applicant to relief. See art. 11.07, § 3 (c). lf the court deterrr.J.ines that controverted

 facts do exist, is shall enter an order designating the issues of fact to be resolved. A..rL

 11.07, § 3 (d); see lvlartin v. Hamlin, 25 S.W.3d 718, (Tex. Crim. App. 2000) (holding

· the trial court has a duty to designate issues if it determines a habeas application contains

 controverted issues.). Upon entry of an order designating issues, the clerk does not have

 a duty to forward the application to the Court of Criminal Appeals, until the trial court

 has resolved those issues and entered its fmdings. See art. 11.07, § 3 (d).
       The State believes that the information from appellant's trial attorney will assist

the Court in detennining whether facts exist material to the legality of ApplicCIJufs

confinement before his application is forwarded to the Court of Criminal Appeals.

       Consequently, the State requests the Court enter an order designating 1ssues

ordering applicants trial attorney, Elizabeth Derieux, to file an affidavit within thirty (30)

days of the signing of this order, addressing applicant's claim of ineffective assistance of

counsel.

       Further, the State requests both parties be allowed an additional thirty (30) days,

after the receipt of the affidavit(s) to prepare their responses to applicant's claims.

       WHEREFORE, PREMISES CONSIDERED, the State prays that this Court

enter the State's Proposed Order Designating issues.


                                                  RespectfuHy submitted,


                                                 Melinda Fletcher
                                                 Post-Conviction Attorney
                                                 Special Prosecution Unit
                                                 P U Box 1744
                                                 _A..rnari..llo, Texas 791 OS
                                                 Phone & Fax 806.367.9407
                                                 Texas Bar Card No. 1 8403630
                              CERTIFICATE OF SERVICE


         I hereby certify that on the 19m day of August, 2009, a true and correct copy of the

State's Request to Designate Issues and Order were mailed postage prepaid to pro se

applicant, Gilbert Damian, TDC # 382329, % TDCJ Wynne Unit, Huntsville, Texas

77349.



                                                  Melinda Fletcher
                                      CAUSE NO. 6430-A

                                             §      IN T.lti'!:E 278TH JUDICIAL

                                             §      DISTRICT CO-URT OF

 GILBERT DAMIAN                              §      WALI<ER COUNTY, TEXAS

                                  ORDER DESIGNATING ISSUES

 Tbe Court, having reviewed Applicant's application for writ of habeas corpus filed
 pursuant to TEx. CODE CRIM. PROC. art. 11.07, decides that there is a question of whdher
 there may be controverted, previously unresolved facts material to               the
                                                                                legality of
 Applicant's confinement that require resolution. Accordingly, the. Court designates tht.:!
 fqllowing issues to be resolved: whether applicant's counsel" was ineffective.

        A hearing shall be conducted by affidavit. Applicant should not be returned to
Walker County. Applicants trial attorney, Elizabeth Derieux, shall each prepare an
affidavit, responding to the above-designated issues. The attorney is encouraged to obtain
other affidavits as may be necessary to resolve these issues,

       The original affidavits shall be submitted to rhe Clerk of this Court with a cop:-'
mailed to the applicant, Gilbert Damian, TDC # 382329, % TDCJ vVynne Unit, Huntsville,
Texas 77349, and the State's post-conviction attorney, Melinda Fletcher, P 0 Box 174-4,
/\marillo, Texas 79105 5 no later than September 30th 5 2009.

        Upon receipt ofthe affid.avit(s), eacb pa..n:y is allowed to file a response and subm.it it
to the Clerk of this Court with a copy mailed to the opposing parry, no iater October 30t\
2',009.

       The Clerk of this Court is directed to send a copy of the writ application along wrth
attached exhibits, to applicant's trial attorney, Elizabeth Derieux, P 0 Box 2649. Lon~'ie\1\·.
Texas 75606.                                                                     -      ~      -

       The Clerk of this Court is also directed to send a copies of this Order to:

      (1)     The State's post-conviction attorney, Melinda Fletcher,
              P 0 Box 1744, Amarillo, Texas 79105;

      (2)    ProSe Applican~ Gilbert Damian~ TDC # 382329,
             % TDCJ Wynne Unit, Huntsville, Texas 77349; and
(3)   Applicant's attorney at trial, ElizabethDerieux,
      P 0 Box 2649, Longview, Texas 75606.




                                 SIGNED this, the _ _ day of August, 200Y.



                                 JUDGE PRESIDING
