                                                                           WR-83,783-01
                                                             COURT OF CRIMINAL APPEALS
                         WR-83,783-01                                        AUSTIN, TEXAS
                                                             Transmitted 9/3/2015 1:36:05 PM
                                                               Accepted 9/3/2015 1:44:55 PM
  I N T H E C O U R T OF CRIMINAL APPEALS                                     ABEL ACOSTA
                                                                                      CLERK
                     OF TEXAS
                                                                 RECEIVED
                                                         COURT OF CRIMINAL APPEALS
                                                                 9/3/2015
       I N RE T H O M A S A L L E N S I M O N ,     Relator ABEL ACOSTA, CLERK



   O N A P P L I C A T I O N FOR A W R I T OF M A N D A M U S
I N CAUSE N O . 42908 I N T H E 424™ D I S T R I C T C O U R T
                  FROM BURNET COUNTY



                    RESPONSE         OF
      Hon. Wiley B. ^^Sonny" McAfee, District Attorney
                   Real Party i n Interest



        OFFICE O F D I S T R I C T A T T O R N E Y
        33^'' and 424'^ J U D I C L ^ D I S T R I C T S
        Wiley B. McAfee, District Attorney
        P. O. Box 725, Llano, Texas 78643
        Telephone         Telecopier
        (325) 247-5755       (325) 247-5274
         g.bunyard@co.llano.tx,us

        By: GaryW.Bunyard
           Assistant District Attorney
           State Bar N o . 03353500
           A T T O R N E Y FOR REAL PARTY I N I N T E R E S T
           WILEY B. " S O N N Y " McAFEE, D I S T R I C T A T T O R N E Y

                       September 3, 2015



                    Oral Argument is Waived
                               Identity Of The Parties



Trial Court/Respondent

   Honorable Evan Stubbs
   424'^ Judicial District
   Burnet County Courthouse Annex (North)
   1701 East Polk St., Suite 74
   Burnet, T X 78611
   424coordinator@dcourttexas.org




Counsel for Real Party i n Interest - Wiley B . "Sonny" McAfee, District Attorney

   Gary W . Bunyard
   Assistant District Attorney
   P. O. Box 725
   Llano, Texas 78643
   (325) 247-5755
   State Bar N o . 03353500
   g.bunyard@co.llano.tx.us

Real Party i n Interest - Gary E. Prust

   Gary E. Prust
   Attorney at Law
   1607 Nueces St.
   Austin, T X 78701
   (512) 469-0092
   gary@prustlaw.com




                                          ii
Counsel for Relator

  Tracy D . Cluck
  Attorney at Law
  12600 H i l l Country Blvd., Suite R-275
  Austin, T K 78738
  (513) 329-2615
  State Bar N o . 00787254
  tracy@tracyclucklawyer.com




O f Counsel for Relator

  L. T . "Butch" Bradt
  Attorney at Law
  14015 Southwest Freeway, Suite 4
  Sugar Land, T X 77478-3500
  (281) 201-0700
  State Bar N o . 02841600
  ltbradt@flash.net



Relator

   Thomas Allen Simon
   SO #26546
   Burnet County Jail
   900 County Lane
   Burnet, T X 78611




                                        iii
                               Table   Of        Contents

                                                                 Page

Index o f Authorities                                                   vi

Statement o f the Case                                                  1

Statement on Oral Argument                                              1

Statement on Jurisdiction                                                1

Response to Issues Presented                                            2

Statement o f the Facts                                                  3

Summary o f the Argument - Response to Issue N o . 1.

   l.a.   The Respondent has the authority to remove appointed
          counsel when the Respondent has made a finding o f
          good cause that is entered on the record                       5

   l.b.   Where the Respondent has authority to remove
          appointed counsel for good cause that is entered

          on the record Mandamus w i l l not lie                         5

Argument on Response to Issue N o . 1.

   1.1.   Principals o f Law                                             7

   1.2.   Applicable Facts                                               8

   1.3.   Discussion and Conclusion                                      8




                                            iv
Summary o f the Argument - Response to Issue N o . 2.

   2.a.   The Real Party i n Interest neither joins nor opposes
          Issue N o . 2 because the Court's order entered on
          August 26, 2015, to stay further proceedings i n the
          underlying cause until this application for writ o f
          mandamus is resolved effectively renders this
          Issue moot                                              10

Argument on Response to Issue N o . 2.

   2.1.   None Presented by Real Party i n Interest               10

Prayer for Relief                                                 11

Certificate o f Word Count                                        11

Certificate o f Service                                           12




                                          V
                               Index    Of          Authorities


Case Law                                                          Page

Braxton v. Dunn, 803 S.W.2cl 318, 320 (Tex.Crim.App. 1991).              7

Ex parte Billy Burl Clayton, 171 Tex. C r i m . 398;

   350 S.W.2d 926 (Tex. C r i m . App. 1961)                             8

Stotts V. Wisser, 894 S.W.2d 366 (Tex. C r i m . App. 1995)              9

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424
   (Tex.Crim.App. 1981)                                             7, 9
TPwmas v. State, 550 S.W.2d 64, 68 (Tex. C r i m . App. 1977)          7




Constitutions

U.S. Const, amend. V I                                                   7

U.S. Const, amend. X I V                                                 7



Statutes/Rules

Tex. Code C r i m . Proc. Art. 26.04                                     7

Tex. Code C r i m . Proc. Art. 26.04 (j) (2)                        7, 8

Tex. Disc. R. of Prof. Cond. Rule 303 (a) (1)                            8




                                               vi
                         statement         Of The          Case

   Counsel for the Relator has adequately set forth the Statement o f the Case except

that Relator was arrested and later indicted for the offenses o f Sexual Assault and

Aggravated Assault Causing Serious Bodily Injury.        Relator was never charged nor

indicted for Aggravated Sexual Assault.         These charges are pending and awaiting

trial subject to the resolution o f this application for writ o f mandamus.




                        Statement       on Oral         Argument

   The undersigned waives Oral Argument.             The undersigned does not believe

that Oral Argument w i l l be beneficial for this case for the reason that the issues are

straight forward and lack any novel or complex nuances. Should the Court believe

that Oral Argument w i l l assist the Court i n any way, the undersigned w i l l gladly

accommodate the Court.




                         Statement       on          Jurisdiction

   While not conceding the right to relief. Real Party I n Interest acknowledges the

jurisdiction o f this Court as set forth by Counsel for Relator.




                                            1
                      R e s p o n s e To Issues        Presented

Response T o Issue N o . 1:

   l.a.    The Respondent has the authority to remove appointed counsel when the

           trial court has made a finding of good cause that is entered on the record.

   1. b.   Where the Respondent has authority to remove appointed counsel for

           good cause that is entered on the record Mandamus w i l l not lie.

Response to Issue N o . 2:

   2. a.   The Real Party i n Interest neither joins nor opposes Issue N o . 2 because

           the Court's order entered on August 26, 2015, to stay further proceedings

           in the underlying cause until this application for w r i t o f mandamus is

           resolved effectively renders this Issue moot.




                                           2
                          statement      Of TIte         Facts


   The Relator was arrested on March 24, 2014, for two counts o f Sexual Assault

and one count of Aggravated Assault Causing Serious Bodily Injury.       The Relater

is not now and has never been charged w i t h Aggravated Sexual Assault i n regard to

this case as is alleged i n the Petition for Mandamus.   The Respondent appointed

Tracy D . Cluck on April 8,2014, to represent the Relator on these charges. A duly

empaneled Grand Jury then returned an Indictment on June 3, 2014, charging the

Relator w i t h two counts o f Sexual Assault and one count o f Aggravated Assault

Causing Serious Bodily Injury.

   As described by Counsel for the Relator, Tracy D . Cluck filed ex parte motions

seeking funds for the employment of a medical expert and for additional funds for

investigative services.    The Respondent called for an ex parte hearing on these

motions. RR Vol.    1 Page 4.   Present at this hearing was Tracy D . Cluck and the

Relator. RR Vol. 1 Page 4. I n presenting the reasons for the funds being requested

Tracy D . Cluck informed the Respondent that he would not be able to provide the

Relator effective assistance of counsel without the funds.   RR Vol.   1 Pages 4 - 8 .

In making the decision to remove Tracy D . Cluck as counsel for the Relator, the



                                          3
Respondent stated that the Respondent was not going to put M r . Cluck i n a position

where he would feel like he was being ineffective.        RR Vol. 1 Pages 11 - 12.

Specifically the trial court held:

   " T H E C O U R T : I ' m not removing you because you've requested the additional
   funds. What you're stating to the Court is that w i t h o u t those funds you don't
   believe you can - you can provide effective assistance o f counsel. That's
   specifically ~

   " M R . C L U C K : Well, what -

   " T H E C O U R T : Hang on.

   " M R . C L U C K : Go ahead. I ' m sorry.

   " T H E C O U R T : That's specifically what you said and I want someone else to
   look at this case."

RRVollPagel2.

   Later i n the day the Respondent appointed Gary Prust as new counsel for the

Relator.




                                                4
                      Summary        Of The Argument           on
                          R e s p o n s e to Issue    No. i

   l.a.   T h e Respondent has the authority to remove appointed

          counsel w h e n the Respondent has made a finding o f good

          cause that is entered on the record,

   l.b.   Where the Respondent has authority to remove appointed

          counsel for good cause that is entered on the record

          Mandamus w i l l not lie.

   Relator complains that the Respondent did not have good cause to remove

Tracy D . Cluck as Relator's appointed counsel. However, M r . Cluck had expressed

to the Respondent his belief that he was unable to provide effective assistance o f

counsel unless the Respondent granted the funds requested.          The Respondent (a)

was not i n the position o f granting the funds requested due to the excessive nature

o f the request, (b) was aware that none o f the other three attorneys representing the

three co-defendants had expressed such an excessive request, ( c) had extensive

personal experience i n representing clients acting i n the role o f a criminal defense

attorney for court appointed clients prior to being elected to the bench, and (d) was

sufficiently aware o f the facts o f the instant case to believe that the level o f funds

requested was excessive. For these reasons the Respondent had concern that i f the
excessive requests were not granted, M r . Cluck would move forward to trial o f the

case under conditions that would create an appellate argument for ineffective

assistance o f counsel and thus, potentially require a second trial at the expense o f

judicial economy and the taxpayers o f Burnet County.




                                          6
                   Argument       On R e s p o n s e to i s s u e No. 1

1.1      Principals of Law

      Where a person accused o f a crime is indigent the trial court is obligated to

appoint competent counsel to represent the person.           Tex. Code C r i m . Proc. Art.

26.04; U.S. Const, amend, V I and X I V ; Thomas v. State, 550 S.W.2d 64, 68 (Tex.

C r i m . App. 1977).

   Where counsel has been appointed to represent a person, the court has the

authority to remove and replace said appointed counsel i f the court makes a fmding

o f good cause that is entered on the record. Tex. Code C r i m . Proc. Art. 26.04 0

(2).

      Mandamus relief is available only when the relator can establish two things: first,

that no other adequate remedy at law is available; and second, that the act he seeks

to compel is ministerial. Braxton v. Dunn, 803 S.W.2d 318, 320 ( T e x . C r i m A p p .

1991).      A n act is ministerial "when the law clearly spells out the duty to be

performed . . . w i t h such certainty that nothing is left to the exercise o f discretion or

judgment." Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420,424 (Tex.Crim A p p .

1981).




                                             7
      A n attorney shall not knowingly make a misrepresentation o f fact to the court.

Ex parte Billy Burl Clayton, 171 Tex. C r i m . 398; 350 S.W.2d 926 (Tex. C r i m . App.

1961); Tex. Disc. R. o f P r o f Cond. Rule 303 (a) (1).

1,2      Applicable Facts

      I n this case, M r . Cluck sought approval o f the Respondent for additional funds

in an unusually large amount for a medical expert and for additional investigation.

RR V o l . 1 Page 4. I n presenting his argument to the Respondent, M r . Cluck stated

that he w o u l d not be able to provide effective assistance o f counsel, or at least was

concerned about his ability to do so, without the requested funds. RR Vol. 1 Pages

4-8.        Expressing concern about M r . Cluck's apparent inability to provide the

Relator w i t h the standard o f representation required by law unless the request for

excessive funds was granted, the Respondent determined it necessary to remove M r .

Cluck as counsel for Relator and appoint other counsel. RR Vol. 1 Pages 1 1 - 1 2 .

IJ       Discussion and Conclusion

      Whether mandamus should lie i n this matter is determined on whether the

Respondent did or did not have good cause to remove Tracy D . Cluck as counsel for

the Relator i n accordance w i t h Tex. Code C r i m . Proc. Art. 26.04 (j) (2).   I f the

reasoning o f the Respondent did not rise to the level o f good cause then the

                                            8
Respondent was without authority to remove M r . Cluck as Relator's counsel. Stotts

V. Wisser, 894 S.W.2d 366 (Tex. C r i m . App. 1995).     Yet i f the Respondent's

reasoning does constitute good cause then the relief o f mandamus is not available.

Texas Dept. of Corrections v. Dalehite, supra.

   The Respondent i n this case had before it a clear statement o f fact from M r .

Cluck that he would not be able to perform his duties to the standards required by

law unless the Respondent approved his request for funds.          W i t h this,   the

Respondent had to choose one o f two conclusions.          Either M r . Cluck was

knowingly making a false statement o f fact to the Respondent i n order to coerce

funds from the Respondent, an action which would be i n violation o f Rule 303 (a)

(1) o f the Rules o f Disciplinary Conduct, or M r . Cluck's statement was true.

Considering that the Respondent did not take disciplinary action against M r . Cluck

for making a false statement to the court, it can be presumed that the Respondent

determined that M r . Cluck's statement about being unable to perform his duties to

the standards required by law unless the Respondent approved his request for funds

was true.

   The findings o f the Respondent on the record i n this regard were made not only

from the direct statement o f M r . Cluck but also from the fact that none o f the

attorneys from the three co-defendants had informed the Respondent o f similar
excessive needs i n order to perform their jobs (RR Vol. 1 Pages 12 - 13) and from

the Respondent's o w n personal experiences i n representing criminal clients i n this

jurisdiction (RR Vol. 1 Page 13) and from what the Respondent then knew o f the

facts of the case (RR Vol. 1 Page 13). Based on these findings the Respondent did

in fact act under the authority of Art. 26.04 (j) (2) i n removing M r . Cluck for good

cause shown on the record for the protection of the rights of the Relator and as such

the relief o f Mandamus is not available under these circumstances.




                       Summary       Of The Argument             on
                          Response         to i s s u e No. 2

   2,a,   T h e R e a l Party in Interest neither joins nor opposes Issue

          No. 2.

   N o argument is presented i n favor or i n opposition of Issue N o . 2.




                   Argument      On R e s p o n s e   to issue    No. 2

   N o argument is presented i n favor or i n opposition o f Issue N o . 2.   I n as much

as this Court has entered an order temporarily staying the proceedings pending

resoludon o f this complaint, the Real Party i n Interest believes that a W r i t o f

Prohibition is duplicitous, unnecessary, and moot.

                                            10
                              Prayer     For      Relief

   Wherefore, Real Party i n Interest, Wiley B. "Sonny" McAfee, District Attorney,

prays the Court deny the relief requested by Relator and set aside the Court's order

staying further proceedings i n the underlying cause.

                                Respectfully submitted,

                                OFFICE O F D I S T R I C T A T T O R N E Y
                                33^° and 424^^ J U D I C I A L D I S T R I C T S
                                Wiley B. McAfee, District Attorney
                                P. O. Box 725
                                Llano, Texas 78643
                                Telephone                    Telecopier
                                (325) 247-5755               (325) 247-5274




                                     Assistant District Attorney
                                      State Bar N o . 03353500
                                     g.bunyard@co.llano.tx.us
                                A T T O R N E Y F O R REAL PARTY I N I N T E R E S T
                                W I L E Y B. " S O N N Y " McAFEE



                     CERTIFICATE OF WORD C O U N T

   This is to certify that the pertinent portion o f this brief contains 1,582 words
printed i n Aldine401 B T 14 font as determined by the WordPerfect X 7 © word
count tool.




                                Assistant District Attorney


                                          11
                          CERTIFICATE OF SERVICE

    This is to certify that a true copy o f the above and foregoing instrument, together
v^ith this proof o f service hereof, has been forwarded by EServe and by email on the
3rd day o f September 2015, to M r . Tracy D . Cluck, Attorney for Relator, at
tracy@tracyclucklaw.com, and by EServe .



                                 u a r y ^ . Bunyard
                                 Assistant District Attorney




                                          12
