                            IN    THE      COURT    OF   APPEALS
                         TWELFTH           DISTRICT      OF   TEXAS
                                      TYLER..       TEXAS

                                                                        FILED m COURT OF APPEALS
                                 No        12-14-00292-CR                12fo Cc.-rt of Appeals District




                       In   re    JUAN      ENRIQUEZ.         Relator         TYLER
                                                                        CATHY S. LUS


           Original   Proceeding from                Anderson County,         Texas
               87th   Judicial        District       Court,     No.   87-9821
           Honorable Deborah A.             Oakes    Evans      Judge    Presiding


                            RELATOR '_S .SUPPLEMENT TO
                ORIGINAL         PETITION FOR WRIT OF MANDAMUS

TO   THE   HONORABLE   JUDGES         OF   SAID     COURT:


       Juan Enriquez.        Relator,         files his Relator's Supplement

to Original Petition for Writ of Mandamus,                            showing as follows:

                                              I .


       Relator's Petition for Writ of Mandamus was                            filed on

October 14, 2014.           However, the Clerk informed Relator that the

petition for mandamus fails to comply with the requirements of
Texas R. App. P. 52.3(k)(1)(C) and Tex. R. App. P. 52.7.                                   Each

of these deficiencies is addressed separately:

                                 Rule      52.3(k)CL)(C)

       Rule 52.3(k)(l)(C) requires inclusion "unless voluminous
or impracticable, the text of any rule, regulation ordinance,
...    or    other law (excluding case law)                        on which the argument

is    based."


        The    basis    of    Relator's            claim    is    the    decision    of    the

United       States    Supreme         Court       in Furman v.          Georgia.    408 U.S.

238 (1972),       as    interpreted by               the    Attorney General of Texas

in Attorney General                Opinion No.         M-1187       issued on       August 1,      1972,

in response       to    inquiry by          the      Board of Pardons            and Paroles       of

Texas regarding the                status      of prisoners             under sentence       of death

when    Furman was       rendered.             A    sworn    copy of Attorney General


Opinion No.       M-1187          is   provided with this. Supplement.

        Relator       also relies         on       Article       42.09,    §8((b),      o*f: the


Texas       Code of Criminal Procedure,                     which provides          that    the


Texas       Department       of    Criminal         Justice       shall    not   take     a defendant


into custody under this article until the designated officer

receives the          documents required by subsections (a)                             and (c) of

this    section."        A sworn copy of this                     article     is    provided with

this   supplement.

                                          Rule       52.7


       Rule    52.7 requires            Relator must             file     a certified or sworn

copy of every document                 that    is    material       to     the relator's         claim

that was filed in any underlying proceeding and a properly

authenticated transcript of any relevant testimony from any

underlying proceeding ... or a statement that no testimony was

adduced in connection with the matter complained ...."                                        Here,

the district clerk of Anderson County has not/replied to Relator's
 requests          to purchase        the record of          the   underlying      cause.


     However,      Relator attached to his Original                      Petition a sworn

     copy of the petition for writ                of habeas corpus            which he

     seeks heard and decided.                Jhus,   Relator has           complied with

     Rule 52.7(a)(1) and there is no need for Rule                           52.7(a)(2) because

 no testimony was adduced in connection with the matter complained

     of   in    thus   natter,


                                                 Respectfully            submitted.




                                                             En riqi
                                                     r12 2
                                                 TDCJ-Michael
                                                 2664     FM   2054
                                                 Jeanessee         Colony;    JX   75886


                                          Verificat ion

               I. Juan    Enriquez.     declare under penalty of perjury,
 that the foregoing statements                    in my Supplement to              Original
 Petition          for    Writ   of   Mandamus    are     true     and   correct.     Executed

 on       December       20   2014.




                                   Certificate       of   Service

       I, Juan Enriquez, certify that a correc t kcopy of the
 foregoinbg Supplement to Original Petition for frit of Mandamus
 was served by placing same in the United States mail, postage
 prepaid, on December 20,                2014     addressed to:              Mr. Douglas E.
 Lowe          District Attorney         Courthouse. 500 Nopth Church St..
Palestine.         TX 75801 and Judge Deborah Oakes Evans,                         87th District
Court, Courthouse                Suite 30.    500 N.      Church Street            Palestine,
TX    75801.
                              Authentication


     I;    Juan   Enriquez,   declare   under penalty of perjury
that the attached Attorney General Opinion No. M-1187
is a correct copy of the opinion provided to me by the
Office of the Attorney General of Texas.  Executed on
December    20,   2014.
                         5 Attommt Gk»kkal
                                    Off* T e x a s


.^•STOKXEY   GKKRHAI.



                                August 1, 1972


    Hon. Clyde Whiteside
    Chairman
    Board, of Pardons and Paroles             .\    Opinion-No, M-1187
    Room 501 John H0 Reagan Bldg,
    Austin, Texas       78701                       Res   Effect of Furman v.
                                                          Georgia holding death
                                                          penalty unconstitutional",
    Dear Sirss                                            and related questions.
             This is in response to your recent inquiry concerning appli
    cation of the .recent JU. S0 Supreme Court 'decisions in Furman v.
    Georgia (69-5003) , Jackson v, Georgia (69-5030) and Branch v.
    Texas (69-5031)          U,S0       ,40 L.W. 4923, to procedures before
    the Texas Board.of Pardons and Paroles.•k We quote your entire
    letter (less formal parts) :'

             "The,Texas,Board of Pardons and Paroles respectfully
             requests .,your .opinion concerning matters of commutation
         of sentence, as' provided in Article 4, Section 11 of
         the Texas Constitution and other Texas lawsD                In view
         of the recent United States Supreme court opinions
         concerning the death penalty in William Henry Furman
         vso State of Georgia, et„ al„, and being cases numbers
         69-5003, 69-5030 and-f69-5031.
         "It-is the established policy of the Texas Board of
         Pardons and Paroles when .considering commutation of
         sentences' from death to life imprisonment that the
         sentencing trial court officials instigate application
         for such commutation by written request to the Board
         setting out its reason for seeking such commutation
         and requesting the Board to, make such recommendation
         to the Governor for his action.   This Board does not                     .
         solicit commutation application nor has it to my know
         ledge ever initiated commutation without the request
         of the trial officials or the convicted defendant.
         This' is the established procedure followed by this and
         prior Boards in such cases„               In view of'the ruling of



                                     -5789-
Hon0yClyde Whiteside/ Page 2         (M-1187)


     the Supreme Court in the Furman casef and other cases
     numbered abovet we would like to have a legal opinion
     upon the following questionss

     "lo   Did the ruling in Furman vsc Georgia, #69-5003,
           69-5030, and 69-3031 et„ al„, declare the death
           penalty unconstitutional,, per se?

     "20   What is -the present posture of death penalties
           assessed in Texas District Courts in the following
           catagories s

                (a)    Awaiting motion, for new trial in Texas
                       District Courts^
                (b)    Awaiting appeal to Texas Court of Criminal
                       Appeals o
                (c)    Affirmed by the Texas Court of Criminal
                       Appeals and awaiting certiorari to the
                       Supreme Court of the United States„
                (d)    Penalties provided declared'unconstitu
                       tional by the Supreme Court of the United
                       States c
                (e)    Habeas Corpus proceedings pending under
                       Article llo07 Texas Code of Criminal Pro
                       cedure o "
                (f)    "Habeas Corpus pending in various federal
                       courtst

     "3o   In view of the Board's policy outlined above, may this
           Board now act with regard to the above"catagories of
           cases to recommend commutation to the Governor?

     "40   In the event of commutation of the death penalty to life
           imprisonment, does this Board have any responsibility
           for causing the individual to be re-sentenced?,' .-

     "5c   What effect upon the action of this Board will result
           when a condemned person informs the' Board in writing
           that he does not wish to receive commutation from death
           to life?"



     The decision of the U3 S-. Supreme Court in the three cited
cases (combined) is a short per curiam decision which, with
formal parts omitted, holdss



                                  -5790-
                                                       X.




 Hon, Clyde Whiteside* Page 3           (M-1187)



               "Certiorari was granted limited to the following
               question?  'Does the imposition and carrying out
               of the death penalty in [these cases] constitute
               cruel and unusual punishment in violation of the
               Eighth and Fourteenth Amendments?'  403 U.S„ 952
               (1971)o The Court holds that the imposition and
               carrying out of the death penalty in these ,
               cases constitutes cruel and unusuaT"~punishment
               in violation of the Eighth and Fourteenth Amend
               ments.*   The judgment in each case is therefore
               reversed insofar as   it leaves     undisturbed the
               death sentence imposed, and the.cases are
               remanded for further proceedings 0" (Emphasis
               added)0

 Then there follow nine opinions (five separate concurrences and
 four joint and separate dissents)s

      We must point out the fact that at the time of the issu
 ance of this opinion the mandate of the-United States Supreme
.Court has not been issued and petitions, for rehearing have been
 filed in all three of the cases (as well as all "other Texas
 death penalty cases acted upon by that Court) «, We do not pre
dict what the action of the Court upon these motions will be.
We can only provide you with our current understanding of these
.decisions,,     The following discussion must be accepted in this
 lighto

     After careful study of the order and the nine opinions, we
conclude that the death penalty, per se, has not been declared
constitutionally impermissible„           The entire thrust of the com
bined cases is to declare Texas (and other) procedures are
violative of "procedural due process" only as to the imposition
of death as a punishment for crime in the manner and under the
circumstances      submitted„

     In our opinion, these decisions make all current Texas death
sentences subject to successful ..attack ,in proper proceedings in
appropriate courts and prohibits the assessment of death in
current cases under present Texas statutes„

                                     Ho


      You have advised this office that your inquiry with^ regard,
to "posture" includes not only presently but also with regard '•.'
to posture in the event the death penalty should be commuted
to life imprisonmento


                                     -5791-




        1 »
               "^




 Hon„ Clyde Whiteside, Page 4         (M-1187)



      In Attorney General's Opinion M«=981 (1971) „ this office ad
 vised that your board "generally can recommend and the Governor,
 based on such recommendation,, can commute a death sentence to life
 imprisonment even though the conviction is on appeal and has not
been finally determined by the Texas Courts0          The Board and
 Governor may do the same even though the United States Supreme
Court may reverse a judgment insofar as it imposes the death
penalty and remands the case to the Texas Court for further pro
 ceedings in conformity with its judgment^ so long as the Texas
Court has taken no final action in the caseo"

     We further advised you that your board "can recommend to the
Governor that a death sentence be;.commuted to life imprisonment,
and the Governore pursuant to such recommendation, can commute the
sentence without consent of the convictc  Neither do we find in
our laws any requirement that the Board of Pardons and Paroles
conduct a hearing before it recommends commutation nor before
commutation is given a"

     This conclusion is supported by the recent decision of the
Court of Criminal Appeals in the case of Whan vc Texas,               S0W„
2d _^ (not yet reported but being Cause Noc 41,789 on th"e""docket
of that court) delivered June 28, 19 720         That opinion holds that
the Governor may commute a'death sentence to life even after the
U0 Sc Supreme Court has declared the death penalty invalid or at
any time after a verdict of guilty has been returned and the jury
has fixed the penalty ibut of course before a new trial has been
granted by a court of competent authority)c The opinion also
noted that commutation does not affect the judgment but merely
mitigates the punishment0

     With such introductory statements, we will now analyze the
categories submitted,,

                                (a)

     Where a death penalty conviction is pending motion for new
trial in the District Court-,, the penalty may be commuted and the
motion for new trial will be heard and disposed of on the merits
asserted as if life imprisonment had been the original penalty
imposedo

                                (b)

    Where appellate review is pending in the Court of Criminal
Appeals9 the penalty may be commuted and the appeal may proceeds


                                •5792-
 HonD Clyde Whiteside, Page 5           (M-1187)




 We express no opinion on whether or not the Court of Criminal
Appeals might return the cause to the District Court for further
 proceedings (such as sentencing, supplementary briefs, etc) or
treat death penalty questions as surplusage, etc, as that Court
has not yet had an opportunity^ to act to provide guidelines in
such matters and the Code of Criminal Procedure appears not to
contemplate such a possibility,,

                                  (c)

     Where certiorari is pending, the penalty may be commuted,
thereby rendering death penalty questions moot (although other
issues would remain unchanged)0

                                (d)

     Where the U„ Sc Supreme Court has granted death penalty re
lief and remanded the cause to the Court of Criminal Appeals
(but where the Court of Criminal Appeals has not yet acted to
grant a new trial), the penalty may be commuted and the Court
of Criminal.Appeals will reaffirm its judgment (this is the
precise posture found in Whan v„ State, supra)„
                                (e)

     Where habeas corpus p: roceedings are pending in Texas courts
under Article 11007, Texas Code of Criminal Procedure, coramuta-
tion may be granted, thereby rendering moot any death penalty
questionso

                                (f)

     Where Federal habeas corpus proceedings are pending, commu
tation may be granted and it would then be incumbent upon counsel
for the State to call this to the attention of the Federal Court
for its consideration upon the issue of mootness0

     It is our opinion that in all of the above categories, ab
sent commutation, the court concerned must either grant a new
trial (or in habeas corpus, order the release of the prisoner
if a new trial is not granted)„

                                IIIo

    In view of the decision in Whan v„ State, supra, it is our

                                                                 -W&-'
                                                                  1&
                                •5793-                           -•*
Hona Clyde Whiteside^ Page 6           (M-1187)



opinion that the Board of Pardons and Paroles may now act with
regard to recommending commutations in all cases in all cate
gories o And since we find no prohibition to prevent the Board
from acting sua sponteg we certainly find no prohibition against
the Board requiring some initiative from either the State or the
condemned person before consideration will be given to a recom
mendation o It is obviously within the inherent rule making power
of the Board to establish orderly procedures for the disposition
of matters within its jurisdiction„

                                  IV o

     We find no statutory burden upon the Board to concern
itself with the sentencing or resentencing of persons com
muted o This would be a matter entirely for the judiciary.

                                  Vo


     In regard to the effect of notice from the condemned man
that he opposes commutation, we quote again (as in A0 G„ Opinion
#M-981) from the Court of Criminal Appeals decision in Ex Parte
LeFors, 303 S„W02d 394 (Tex=Crim0 1957) at p„ 397:

               "Commutation of sentence means the change of
          the punishment assessed to a less severe one„   It
          differs from a pardon in that it may be imposed
          without consent of the convict or against his will,,11
          (Emphasis added0)

Since the people of Texas have an interest in conserving judicial
time and the immense cost of retrials, counsel for the State
may properly petition for commutation to avoid such wasteful
duplicityo  It is our opinion that such a request from a con
demned man.should be considered by the Board along with all other
factors but.such request in, no way prevents the Board from exer
cising its lawful discretion in making or withholding a recom
mendation to the Governoro
                                                                       y
     This question was disposed in Biddle vc Perovich, 274 U0S0 >:>'
480 (U0SoSoCt0, 1927), wherein Mrc Justice Holmes stated for       '
a unanimous   courts

               "Both sides agree that the act of the
          President was properly styled a commutation
          of sentence, but the counsel; of'<Eferpyich;;."-."' ;r



                                 •5794-
Hon0 Clyde Whiteside,* Page 7            (M-1187)



          urge that when the attempt is to commute a
          punishment to one of a different sort it
          cannot be done without the convict°s consent,,"
          *    *    *



               "We will not go into history, but we will
          say a word about the principles of.pardons in
         ,the law pf'the;United.Stateso A pardon in our
         -days is not a,private act of grace from an
          individual happening to possess power„ It is
          a part of the Constitutional scheme„   When
          granted it=is, the-determination of the ulti
          mate authority that the public welfare will
          be better served by inflicting less than what
          the judgment fixed0" * * *

                        "When we come to the commutation of death
         to imprisonment for life it is hard to see
         how consent has any more,to do with it than it
         has in the cases first putQ Supposing that
         Perovich did not accept the change, he could
         not have got himself hanged against the Execu
         tive ordero           Supposing that he did accept, he
         could not affect the judgment to be carried
         outo           The considerations that led to the
         modification had nothing to do with his willo
         The only question is whether the substituted
         punishment was authorized by law—•„ o ." * * *

              "We cannot doubt that the power extends
         to this case, By common understanding impris
         onment for life is a less penalty than death*
         It is treated so in the statute under which
         Perovich was tried,"* * *

                                   SUMMARY


         lc The Uo So Supreme Court has not held the death
    penalty unconstitutional, per se, but has declared Texas
    procedure in the assessment of"Heath unconstitutional„

         2» Present death penalties at any stage between
    jury verdict and granting of a new trial may be commuted
    to lifeD

         30        The Board of Pardons and Paroles may now act to


                                      5795-
 Hon. Clyde Whiteside>; Page 8            (M--1187)



         recommend commutation upon application from officials of
         the convicting court.

              40     The Board has no obligation to go forward in
         causing convicting courts to re-sentence (under nunc
         pro tunc)    those commuted.                             ——

              50     The Board may recommend (and the Governor may
         grant) commutation over a protest from the condemned
      person.


                                        Respectfully submitted,


                                                 C.   MARTIN
                                                 General of Texas

Prepared by Howard M„ Fender
Assistant Attorney General
APPROVED s
OPINION COMMITTEE

Kerns Taylor, Chairman
W„ E0 Allen, Co-Chairman

Max P0    Flusche
Lang A. Baker
Robert La Lattimore
Gordon Cass

SAMUEL D0    McDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




                                   -5796-
                                 Authentic at ion


       I,   Juan    Enriquez.    declare   under penalty of perjury
that the attached Article 42.09 o;f: the Code           of Criminal
Procedure is a correct copy of said Article             42.09.  Executed
on   December      20,   2014.
         Art. 42.09. COMMENCEMENT OF SENTENCE; STATUS DURING APPEAL; PEN
 PACKET.


         Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to
 a jail or to the Texas Department of Criminal Justice when his sentence is pronounced,
 or his sentence to death is announced, by the court. The defendant's sentence begins to
 run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
          Sec. 2. If a defendant appeals his conviction and is released on bail pending
 disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on
 receipt of the mandate from the appellate court, shall issue a commitment against the
 defendant. The officerexecuting the commitment shall endorse thereon the date he takes
 the defendant into custody and the defendant's sentence begins to run from the date
 endorsed on the commitment. The Texas Department of Criminal Justice shall admit the
 defendant named in the commitment on the basis of the commitment.

         Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a
term of more than ten years in the Texas Department of Criminal Justice and he gives
notice of appeal, he shall be transferred to the department on a commitment pending a
mandate from the court of appeals or the Court of Criminal Appeals.
       Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail
pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred
to the Texas Department of Criminal Justice on a commitment pending a mandate from
the Court of Appeals or the Court of Criminal Appeals upon request in open court or upon
written request to the sentencing court. Upon a valid transfer to the department under
this section, the defendant may not thereafter be released on bail pending his appeal.
        Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice
pending appeal under Section 3 or 4, his sentence shall be computed as if no appeal had
been taken if the appeal is affirmed.

        Sec. 6. All defendants who have been transferred to the Texas Department of
Criminal Justice pending the appeal of their convictions under this article shall be under
the control and authority of the department for all purposes as if no appeal were pending.
      Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas
Department of Criminal Justice but is not transferred to the department under Section 3
or 4, the court, before the date on which it would lose jurisdiction under Section 6(a),
         Art. 42.09. COMMENCEMENT OF SENTENCE; STATUS DURING APPEAL; PEN
 PACKET.


         Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to
 a jail or to the Texas Department of Criminal Justice when his sentence is pronounced,
 or his sentence to death is announced, by the court. The defendant's sentence begins to
 run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
          Sec. 2. If a defendant appeals his conviction and is released on bail pending
 disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on
 receipt of the mandate from the appellate court, shall issue a commitment against the
 defendant. The officerexecuting the commitment shall endorse thereon the date he takes
 the defendant into custody and the defendant's sentence begins to run from the date
 endorsed on the commitment. The Texas Department of Criminal Justice shall admit the
 defendant named in the commitment on the basis of the commitment.

         Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a
term of more than ten years in the Texas Department of Criminal Justice and he gives
notice of appeal, he shall be transferred to the department on a commitment pending a
mandate from the court of appeals or the Court of Criminal Appeals.
       Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail
pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred
to the Texas Department of Criminal Justice on a commitment pending a mandate from
the Court of Appeals orthe Court of Criminal Appeals upon request in open court or upon
written request to the sentencing court. Upon a valid transfer to the department under
this section, the defendant may not thereafter be released on bail pending his appeal.
        Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice
pending appeal under Section 3 or 4, his sentence shall be computed as if no appeal had
been taken if the appeal is affirmed.

        Sec. 6. All defendants who have been transferred to the Texas Department of
Criminal Justice pending the appeal of their convictions under this article shall be under
the control and authority of the department for all purposes as if no appeal were pending.
      Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas
Department of Criminal Justice but is not transferred to the department under Section 3
or 4, the court, before the date on which it would lose jurisdiction under Section 6(a),
Acts 2005, 79th Leg., Ch. 728, Sec. 4.005, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 4, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.023, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.024, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 980, Sec. 1, eff. September 1, 2009.




                                   d.
Acts 2005, 79th Leg., Ch. 728, Sec. 4.005, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 4, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.023, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.024, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 980, Sec. 1, eff. September 1, 2009.




                                   4
