                                                                                 WR-82,772-03
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 3/17/2015 8:18:52 AM
                                                                  Accepted 3/19/2015 1:32:54 PM
                                                                                    ABEL ACOSTA
                                                                                            CLERK
                 Nos. 82,772-01, 82,772-01 and 82,772-03
                                                                    RECEIVED
                                                             COURT OF CRIMINAL APPEALS
EX PARTE                           §           IN THE   COURT OF CRIMINAL
                                                                    3/19/2015
                                                               ABEL ACOSTA, CLERK
                                   §
DONALD LEE GRAY                    §           APPEALS OF TEXAS


                       MOTION FOR REMAND


       To the Honorable Judges of the Court of Criminal Appeals:

       Donald Gray, petitioner, respectfully asks the Court to remand to

the district court for consideration of his affidavit confirming restraint.

       As explained in his brief, Gray seeks habeas relief from three

convictions for improper photography, Penal Code section 21.15,

declared unconstitutional by the Court last year. Gray’s continuing

restraint affidavit was filed after the district court signed adverse

findings and conclusions but before the record was send to the Court.

       Remand is appropriate to permit the district court to evaluate the

affidavit. The State’s answer to the petition recognizes that the Court

has held the statute unconstitutional and appears to concede the writ

would be granted, but for the affidavit of restraint.

       Alternatively, in the interests of judicial economy, the Court can

grant the writ on the basis of Gray’s affidavit. If denied, Gray would be

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permitted to file a successor writ under section 4(a)(2) of article 11.07,

the actual innocence provision. Section 4(a)(2) allows a successor writ if

the individual is actually innocent of a Penal Code violation, without

any other restrictions. Here, the improper photography statute has been

declared unconstitutional and therefore any conviction would be void ab

initio. It would seem, therefore, that he can satisfy section 4(a)(2). An

example appears in Ex parte Knipp, 236 S.W.3d 214 (Tex. Crim. App.

2007), in which Court unanimously granted a successor writ under

section 4(a)(2) on a double jeopardy claim that rendered the conviction

invalid from inception. Gray’s position appears identical.


                                  Respectfully submitted this 16 day of
                                  March 2015,
                                  /s/ James W. Volberding
                                  ______________________________
                                  JAMES W. VOLBERDING
                                  SBN: 00786313

                                  First Place
                                  100 E. Ferguson Street
                                  Suite 500
                                  Tyler, Texas 75702
                                  (903) 597-6622
                                  (866) 398-6883 (fax)
                                  e-mail: jamesvolberding@gmail.com

                                  Counsel for Donald Lee Gray



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                      Certificate of Compliance

     Pursuant to Rule 73.1(f), I hereby certify that this pleading
contains 252 words, measured in MS Word for MAC version 14.3.6.
                                /s/ James W. Volberding
                                ____________________________________
                                JAMES W. VOLBERDING

                       CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of this pleading has
been delivered this 16 day of March 2015 to:

       Smith County District Attorney
       101 N. Broadway, Fourth Floor
       Tyler, TX 75702

by the following means:

_____            By U.S. Postal Service Certified Mail, R.R.R.
_____            By First Class U.S. Mail
_____            By Special Courier _______________________
_X___            By Hand Delivery
_____            By Fax before 5 p.m.
_____            By Fax after 5 p.m.
_X___            By Electronic Filing.
                                  /s/ James W. Volberding
                                  ____________________________________
                                  JAMES W. VOLBERDING




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