                        NO.
                              ia--i5-com3-c^
                                                            | FILED IN COURT OF APPEALS
                                                              10ThCourt of Appeals Dlsf ct

                                    IN THE
                                                                     jun -1m
                           TWELFTH COURT OF APPEALS

                                 TYLER, TEXAS                        TYLER TEXAS
                                                               CATHY S. LUSK, CLERK



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                              ORIGINAL   PETITION

                           FOR WRIT    OF   MANDAMUS




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                                      IN RE

                                  SHANE CAIN




*****************************************




                          TRIAL COURT NO. 14,288-CR

                349th DISTRICT COURT OF HOUSTON COUNTY, TEXAS

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                           ORAL ARGUMENT REQUESTED


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                                              Shane Cain #537264

                                              1697 FM 9S0

                                              Huntsville, TX 773*3

                                              (Relator)
                                   PARTIES



Relator is Shane Cain, #537264, whose address is 1697 FM 980, Hunsville,
Texas 77343.



Respondent is the Honorable Pam Fletcher, 349th District Court, Houston County,
Texas, whose address is the Houston County Courthouse, Crockett, TX 75835.
                               TABLE OF CONTENTS




Parties                                                                     i

Table of Contents                                                           ii
Index of Authorities                                                        P- 1

Statement of Case                                                           P- 2
Statement of Jurisdiction                                                   P. 2
ISSUE PRESENTED:                                                            P. 2

IS THE APRIL 12. 1993 JUDGMENT AND SENTENCE IN CAUSE NO. 14.288-CR VOID

IN LIGHT OF ARTICLES 1 § 15 AND 1 § 29 OF THE TEXAS CONSTITUTION, BILL OF

RIGHTS?




Statement of Facts:                                                         P. 2

Argument                                                                    P• 3
PRAYER                                                                      P. 4

Certification                                                               P. 4
Appendix-Exhibit A                                                          P. 5-




                                      li
                              INDEX OF AUTHORITIES


Texas Constitution:
Article 1 § 15. Texas Constitution, Bill of Riqhts      P. 2-3
Article 1 § 29, Texas Constitution- Bill of Riqhts      P. 2-3




Statutes:


Article 1.13. Texas Code of Criminal Procedure          P.   2-3




Texas Cases:

Cantral & M- R. Co. v. Morris, 3 S.W. 457 (Sud. 1887)   P. 3
Murphy v. Phillips, 63 S.W. 404 ("Civ. App. 1933)       P. 3




                                      P.   1
                            STATEMENT OF THE CASE




   Relator was charged with the offense of Possession of a Deadly Weapon in
a Penal Institution in the 349th District Court of Houston County, Texas, Cause
no. 14,288-CR.

   On April 12, 1993 Relator waived his right to trial by jury, pled guilty,
and the trial court entered a Judgment and Sentence finding Relator guilty
and sentenced him to 35 years in TDCJ without a trial by jury. (See Attached
Exhibit A, Judgment and Sentence in Cause no. 14,288-CR)



                                  JURISDICTION



   This Court has jurisdiction pursuant to Article V § 6 of the Texas   Consti
tution.




                                ISSUE PRESENTED



   IS THE APRIL 12, 1993 JUDGMENT AND SENTENCE IN CAUSE NO. 14,288-CR VOID

IN LIGHT OF ARTICLES 1 § 15 AND 1 § 29 OF THE TEXAS CONSTITUTION, BILL OF RIGHTS?




                               STATEMENT 07 FACTS



   On April 12, 1993, Relator waived his right to trial by jury, pled guilty,
to the Offense of Possession of a Deadly Weapon in a Penal Institution in cause
no. 14, 238-CR. Relator waived his right to a trial by jury under Art. 1.13,
Texas Code of Criminal Procedure (a void law). The 349th District Court than
found Relator guilty and entered a Judgment and Sentence and sentenced Relator
to 35 years in TDCJ; entering a void judgment where it is based on a void law
as outlined herein.




                                     P.   2
                                    ARGUMENT




   Article 1.13, Texas Code of Criminal Procedure, is a law enacted by the

Texas Legislature in 1965. It is a law that gives non-capital/non-death penalty
defendants the right to "waive" their right to a trial by jury. This law is
void under Article 1 5 29 of the Texas Constitutions Bill of Rights because
Article 1.13, Texas Code of Criminal Procedure is contrary to Article 1 § 15
of the Texas Constitutions Bill of Riqhts as outlined herein:

   In 1935 the voters of this great state adopted Article 1 § 15 of the Texas
Constitutions Bill of Rights, which specifically states that, "The right of
trial by jury shall remain inviolate." Additionally, and to emphasize the
importance and seriousness of this right, the voters also adopted Article
1 5 29 of the Texas Bill of Rights that further state:
   "To guard against transgressions of the high powers herein deleqated, we
   declare that everything in this "Bill of Rights" is excepted out of the
   general powers of government, and SHALL FOREVER REMAIN INVIOLATE, AND ALL
   LAWS CONTRARY THERETO, or to the following provisions. SHALL BE VOID."


   Article 1 § 29 of the Bill or Rights specifically prohibits the legislature
from enacting any law that is contrary to the Bill of Rights and any law that
is contrary to the Bill of Rights is to be declared void.
   It is obviouslv clear that Article 1 § 15 of the Bill of Riqhts states that
                          n                      ii
the right of trial by jury shall remain inviolate and Article 1.13 of the Texas
                                                                            i'     "
Code of Criminal procedures "law" enacted by the legislature to allow the waiver
of this right are clearly contrary to eachother and the law is void under Article
1 § 29 of the Bill of Rights.
   In 1887 the Texas Supreme Court has even held that. "The right of trial
by jury cannot be defeated by a legislative enactment." Central & M- R. Co.
v. Morris, 3 S.W. 457 (SUP. 1887) and, "When the Legislature has clearly and
directlv done something contrary to the Bill of Riqhts. the judiciary must
declare such enactment void." Murphv v. Phillips, 63 S.W. 404 (Civ- App. 1933).
   In the case at hand. Relator is not askinq this court to declare Article 1.13

of the Texas Code of Criminal Procedure void. Relator is specifically asking the
Court to simply modify or overturn the judgment in cause no. 14,288-CR where it
is a void judgment based on a void law. The 6<M of fcjhtr docs not juM.


fkoY f.'cjkf -fo ck. ]vty trial. There-fcr*, -fht juJ^M^f «*" ^^s c(kS^
]s voj because fWf< ^a r m jury -fr/W ^^ q jury canwr P<
                              NO OTHER AVAILABLE REMEDY

   A writ of mandamus is an appropriate remedy in this case where the Relator is
not allowed to file anv petitions for writ of habeas corpus' in Houston County
and mandamus is the appropriate remedy for a void judgment.




                                       PRAYER

   WHEREFORE, Relator prays that the Court will consider granting relief by
either of the following:


1. Vacate or overturn the judgment in cause no- 14,288-CR and remand this case
   back to the trial court for a jury trial, or
2. Reform or modify the judoment in cause no. 14,288-CR by reducing the 35 year
   sentence imposed and reduce it to a ten (10) year sentence to be ran "concurrently"
   with Relators prior 99 year sentence in cause no. 91-0984-CR from Guadalupe
   County, Texas, to resolve this issue and make this a "moot" issue.


NOTE: Relator has already been in prison for the last 26 years and is currently
      serving a 99 vear sentence. Overturninq or modifyinq the -judgment in cause
      no. 14.2^8-CR will not cause Relator to be released from prison.




   Respectfully submitted on this 28th day of May 2015.


                                                          xiz4   M0
                                                          Shane Cain #537264

                                                           1607 FM 980

                                                          Huntsville. TX 77343



                                   CERTIFICATION

   I, Shane Cain, Relator, have reviewed this petition and conclude that every
factual statement in this petition is supported by competent evidence included
in the appendix and record.




                                                          Shane Cain—Relator




                                          P. 4
      VOL vJU'J ' ?5$ JOvJ
                                         NO.    14,288-CR

THE STATE OF TEXAS                                   s               IN THE DISTR&T COURT,OF
                                                     s
VS.                                                  s               HOUSTON COUNTY, TiEXA^                ~
                                                     s                                !        g » :"£
SHANE CAIN                                           s               3RD\349TH JUblCIAt' D££TRI<2T/;
                                                                                               ~     ~o
                                JUDGMENT AND SENTENCE ON PLEA OF                      CD
                                                                                      m
                             GUILTY OR NOLO CONTENDERE BEFORE COURT
                                     WAIVER OF JURY TRIAL                                            en


Judge Presiding: ^ |fTtV GMttfUW                             Date of Judgment:                J-)~~}£^/3
                                 7
Attorney                                                      attorney
                                                             Attorney                 » •>          ^w ,
for   States     RAY MONTGOMERY                              :or Defendant:       J<%y £ t/ftS
Offense
Convicted of:
                          t&
                          {OWI
                     AgywwtedeL fismomlM. with a ~
                                                             Date Offense Committed:
                                                                     nil
                                                                                                     08-13-92
                     d*w«1j Wdhya       ms^s^yi err a. JjZMW                    . ,
Degree:      First
Penal Code 22.02                        COuKJ&
Charging
Instrument:       Indictment                                 Plea:     Guilty

Terms of Plea Barga^A (in detail): ^s" yrs. TDCJ-ID stacked on 91-0984-CR,
 D\$**t& 0«f X j             k/tyi              Guadalupe County, Texas.
Plea to Enhancement                                          Findings on
Paragraph(s):        TRUE                                    Enhancement:       TRUE

Findings on Use of
Deadly Weapon:        WW Nji
Punishment and                                                             Date to
Place of Confinement:                     .    TDCJ-ID                     Commence:          SEE BELOW


Date Sentence         .      ~
Imposed:        ^"l*?/ 3                                                   Costs: $ %Y)SD
Time Credited:                                               Total Amount of                              \l i
November 24,      1992                                       Restitution/Reparation:                 $     Ti\

Consecutive


       On the /c?v th day of Afnl     , 1993, the above referenced cause was
called
    id for trial.  The parties Appeared
                               a         as follows:  the State appeared by
its Special Prosecutor, and the Defendant, Shane Cain, appeared in person
with his attorney of record, p^i V€• /h//lS                                               .        Both parties
announced ready for trial, and the/Defendant having waived his right to a
jury trial entered his plea of guilty to the offense of Aggravated Assault
with a Deadly Weapon committed on August 13, 1992. After the reading of the




                                                P.       5
                                                               V;)!. Ut;0 'RC* iU /

indictment was   waived   and evidence   for   the   State   and the Defendant was
submitted and concluded, and argument of counsel for the State and Defendant
was heard and concluded, the Court made the following findings:

     Defendant is guilty as charged in the indictment.

     Thereupon, the said Defendant having previously requested that the Court
assess the proper punishment, and upon hearing all the evidence submitted by
and on behalf of the State and the Defendant, the Court is of the opinion and
so finds the proper punishment of the Defendant should be by confinement in
the Texas Department of Criminal Justice Institutional Division for a term of
fyirh-flrt (3T1 years.
     It is therefore CONSIDERED, ADJUDGED AND ORDERED by the Court that the
Defendant, Shane Cain, is guilty of the offense of Aggravated Assault with a
Deadly Weapon committed on August 13, 1992, and that he be punished by
confinement in the Texas Department of Criminal Justice Institutional
Division for a term of Huffy-$\vC   (<?s~) years, and that such punishment be
carried into execution in the manner prescribed by law.

     It is further ORDERED by the Court that the judgment and sentence in
this cause shall begin to run from and after the sentence of law in Cause No.
91-0984-CR on the 18th day of May, 1992, in the 25th District Court of
Guadalupe County, Texas, for the offense of Retaliation, for which the
defendant received 22— Years» nas ceased to operate, and the said Defendant
is hereby remanded in jail until the directions of this sentence can by
obeyed.


Rightjf^mb print
                                          IDING JUDGE




                                     Date /Signed     '


                                                  Notice of Appeal:




                                           P. 6
