                                                                          ACCEPTED
                                                                      02-15-0001-CV
                                                          SECOND COURT OF APPEALS
                                                               FORT WORTH, TEXAS
                                                                 1/9/2015 2:59:16 PM
                                                                      DEBRA SPISAK
                                                                              CLERK

                 IN THE COURT OF APPEALS

            FOR THE SECOND DISTRICT OF TEXAS         FILED IN
                                              2nd COURT OF APPEALS
                                               FORT WORTH, TEXAS
                                              1/9/2015 2:59:16 PM
IN RE                        §                     DEBRA SPISAK
JULIS EDWARD PERALES         §    NO.   02-15-00001-CVClerk
                             §


       RESPONSE TO PETITION FOR WRIT OF MANDAMUS



TO THE HONORABLE COURT OF APPEALS:

    COMES NOW, the Real Party in Interest, the State of

Texas, by and through the Hon. Sharen Wilson, the Criminal

District Attorney of Tarrant County, Texas, and hereby

responds to the relator’s application for writ of mandamus.



             IDENTITY OF PARTIES AND COUNSEL

    The relator in the present cause is Julis Edward

Perales, who has filed an application for writ of habeas

corpus challenging his conviction for capital murder in the

underlying cause, styled Ex parte Julis Edward Perales,

cause number C-396-009930-1005465-A.      The respondent is

the 396th Judicial District Court of Tarrant County, Texas

                             1
(herein after “the trial court”).           The real party in

interest is Sharen Wilson, the elected criminal district

attorney of Tarrant County, Texas (herein after “State”).

     The relator is proceeding pro se on this petition for

writ of mandamus and on his underlying application for writ

of   habeas   corpus.      The   real   party   in   interest   is

represented by Steven W. Conder, 401 W. Belknap, Fort Worth,

Texas 76196-0201.



                        TABLE OF CONTENTS

Identity of Parties and Counsel ....................... 1

Index of Authorities .................................. 3

Statement of the Case ................................. 4

State’s Response to Issue Presented ................... 5

Argument .............................................. 6

     A. Jurisdiction ................................... 6

     B. Relator Not Entitled to Mandamus Relief ........ 7

         1. No Clear Abuse of Discretion .............. 8

         2. Other Adequate Legal Remedies ............. 9

Conclusion ........................................... 10

                                 2
Prayer ............................................... 10

Certificate of Service ............................... 11

Certificate of Compliance ............................ 11

Appendix A ............................. Writ Application

Appendix B ............ State’s Proposed Findings of Fact



                  INDEX OF AUTHORITIES

Cases

Ashorn v. State,
 77 S.W.3d 405........................................ 6

Canadian Helicopters Ltd. v. Wittig,
 876 S.W.2d 304 (Tex. 1994)........................ 7, 8

Ex parte Harleston,
 431 S.W.3d 67 (Tex. Crim. App. 2014)................. 8

In re McAfee,
 53 S.W.3d 715 (Tex. App. –
 Houston [1st Dist.] 2001)......................... 7, 9

In re McCoin,
 2004 WL 612815 (Tex. App. – Texarkana 2004).......... 9

In re Menniefee,
 2014 WL 5474798 (Tex. App. – Dallas 2014)............ 7

Perales v. State,
 2008 WL 4531659 (Tex. App. – Fort Worth 2008, pet.... 4



                            3
Tilton v. Marshall,
 925 S.W.2d 672 (Tex. 1996)........................... 8


Statutes

Tex. Code Crim. Proc. art. 11.05 ...................... 6

Tex. Code Crim. Proc. art. 11.07 §3(d) ................ 9

Tex. Govt. Code §22.221(d) ............................ 6


Rules

Tex. R. App. P. 9.4(e) ............................... 11

Tex. R. App. P. 9.4(i) ............................... 11

Tex. R. App. P. 9.4(i)(1) ............................ 11



                  STATEMENT OF THE CASE

    The relator was convicted by a jury of the offense of

capital murder on July 19, 2007, and was sentenced to life

confinement.   See Judgment, cause number 1005465D.   This

Court affirmed his conviction on October 9, 2008.     See

Perales v. State, 2008 WL 4531659 (Tex. App. – Fort Worth

2008, pet. dismissed).

    On June 18, 2013, the relator filed an application for

writ of habeas corpus with the trial court raising ten
                            4
grounds for relief.      See Ex parte Perales, No. C-396-

009930-10005465-A (application).       His application remains

pending with the trial court. 1

    On January 5, 2015, the relator filed this petition for

writ of mandamus requesting the Court order the trial court

to rule on his motion for an evidentiary hearing.              See

Original Application for Writ of Mandamus - cause number

02-15-00001-CV.    The Court has ordered the State to respond

to the relator’s petition by January 20, 2015.



           STATE’S RESPONSE TO ISSUE PRESENTED

    This   Court    lacks   jurisdiction     to   consider     the

relator’s application for writ of mandamus because it

concerns the issues raised in his article 11.07 application

for writ of habeas corpus.      Alternatively, the relator is

not entitled to mandamus relief because the trial court’s

1   On July 23, 2014, the State filed proposed findings of fact and
    conclusions of law in which it agreed that the relator is
    entitled to a new sentencing hearing because he received a life
    without parole sentence for a crime that he committed when he
    was seventeen years old.       See Ex parte Perales, C-396-
    009930-10005465-A (proposed findings of fact and conclusions
    of law).


                                5
inaction is not a clear abuse of discretion and he has other

legal remedies.



                         ARGUMENT

A.   Jurisdiction

     An intermediate court of appeals has no jurisdiction

relating to applications for habeas corpus relief in

connection with criminal proceedings.       See Ashorn v.

State, 77 S.W.3d 405, 409 (Tex. App. - Houston [1st Dist.]

2002, pet. refused).   The Texas Government Code limits the

habeas corpus jurisdiction of intermediate courts of

appeals to civil matters.   See Tex. Govt. Code §22.221(d).

By contrast, the Texas Code of Criminal Procedure places

habeas corpus jurisdiction over criminal matters with the

Court of Criminal Appeals, the district courts and the

county courts.    See Tex. Code Crim. Proc. art. 11.05.

     Article 11.07, which provides the exclusive procedure

for habeas corpus relief from a non-death penalty felony

judgment, contains no role for the intermediate courts of

appeals; the only courts referred to are the convicting

                             6
court and the Court of Criminal Appeals.         See In re McAfee,

53 S.W.3d 715, 718 (Tex. App. – Houston [1st Dist.] 2001);

In re Menniefee, 2014 WL 5474798 (Tex. App. – Dallas 2014)

(not    designated    for   publication).       Accordingly,      the

intermediate       courts    of    appeals   have    no   mandamus

jurisdiction in matters related to pending petitions for

writ of habeas corpus.       See In re McAfee, 53 S.W.3d at 718;

In re Menniefee, page 1. 2



B.     Relator Not Entitled to Mandamus Relief

       Mandamus is an extraordinary remedy, available only in

limited circumstances.            Canadian Helicopters Ltd. v.

Wittig, 876 S.W.2d 304, 305 (Tex. 1994).        A relator seeking

mandamus relief must show (1) that a respondent either

failed to perform a clear legal duty or committed a clear

abuse of discretion; (2) that the relator’s legal remedies

are inadequate; and (3) that the petition raises important



2      In fact, In re Menniefee deals with this exact same
       situation of a trial court’s inaction on a motion for an
       evidentiary hearing in an article 11.07 habeas corpus
       proceeding. See In re Menniefee, page 1.

                                   7
issues for the state’s jurisprudence.     Tilton v. Marshall,

925 S.W.2d 672, 682 (Tex. 1996).        Such a limitation is

necessary to preserve “orderly trial proceedings” and to

prevent the “constant interruptions of the trial process

by appellate courts”.       Canadian Helicopters Ltd. v.

Wittig, 876 S.W.2d at 305.        Consistent with this narrow

approach to mandamus, a heavy burden of showing an abuse

of discretion as well as the inadequacy of a remedy by appeal

is placed on the relator.    Id.



1.   No Clear Abuse of Discretion

     The trial court’s conduct in not considering the merits

of the relator’s request for an evidentiary hearing is not

a clear abuse of discretion.

     Article 11.07 permits a trial court to conduct a live

hearing, as well as consider affidavits, depositions,

interrogatories, and the judge's own personal recollection

if the habeas judge was also the trial judge.    See Ex parte

Harleston, 431 S.W.3d 67, 70 (Tex. Crim. App. 2014); Tex.

Code Crim. Proc. art. 11.07 §3(d).        Nothing in article

                              8
11.07 requires a trial court to conduct a live hearing in

order to resolve an article 11.07 application for writ of

habeas corpus.      See Tex. Code Crim. Proc. art. 11.07

§3(d).   See also In re McCoin, 2004 WL 612815 (Tex. App.

– Texarkana 2004) (not designated for publication) (article

11.07 writ applicant not entitled to a live evidentiary

hearing).

     Thus, the trial court had no obligation to rule on the

relator’s motion and, likewise, did not clearly abuse its

discretion by not ruling on the relator’s motion.



2.   Other Adequate Legal Remedies

     The relator has other adequate legal remedies for

challenging the trial court’s inaction on his motion for

an   evidentiary   hearing.   Specifically,    he   may   seek

mandamus relief from the Court of Criminal Appeals to

complain about an action or inaction of the convicting

court.   See In re McAfee, 53 S.W.3d at 718.




                              9
                       CONCLUSION

    This Court lacks mandamus jurisdiction in matters

related to pending article 11.07 applications for writ of

habeas corpus.   The relator is not entitled to mandamus

relief because the trial court did not clearly abuse its

discretion, and he has other legal remedies.



    WHEREFORE, PREMISES CONSIDERED, the State prays the

Court deny the relator’s petition for writ of mandamus.


                          Respectfully submitted,

                          SHAREN WILSON
                          Criminal District Attorney
                          Tarrant County, Texas

                          DEBRA WINDSOR
                          Chief, Post-Conviction

                          /s/ Steven W. Conder
                          STEVEN W. CONDER, Assistant
                          Criminal District Attorney
                          401 W. Belknap
                          Fort Worth, Texas 76196-0201
                          (817) 884-1687
                          FAX (817) 884-1672
                          State Bar No. 24073106
                          COAAppellatealerts@tarrantcou
                          ntytx.gov


                           10
                  CERTIFICATE OF SERVICE

     A true copy of this mandamus response will be mailed

to   the   realtor,   Mr.   Julis    Edward   Perales,   TDCJ-ID

#01449158, Hughes Unit, Route 2, Box 4400, Gatesville,

Texas 76597, on this, the 9th of January, 2015.     A true copy

of this mandamus response will be hand-delivered to the

respondent, the Hon. George W. Gallagher, Judge, 396th

Judicial District Court, 401 W. Belknap, Fort Worth, Texas

76196, on this, the 9th of January, 2015


                             /s/ Steven W. Conder
                             STEVEN W. CONDER


                 CERTIFICATE OF COMPLIANCE

     This document complies with the typeface requirements

of Tex. R. App. P. 9.4(e) because it has been prepared in

a conventional typeface no smaller than 14-point for text

and 12-point for footnotes.         This document complies with

the word-count limitations of Tex. R. App. P. 9.4(i) because

it contains approximately 1067 words, excluding those parts

exempted by Tex. R. App. P. 9.4(i)(1), as computed by


                               11
Microsoft Office Word 2010 - the computer program used to

prepare the document.

                          /s/ Steven W. Conder
                          STEVEN W. CONDER




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