                                                                                         ACCEPTED
                                                                                     06-15-00090-CR
                                                                          SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                6/2/2015 10:12:01 AM
''                                                                                  DEBBIE AUTREY
                                                                                              CLERK


                IN THE COURT OF APPEALS FOR THE
             SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                                  FILED IN
                                                           6th COURT OF APPEALS
                                  §                          TEXARKANA, TEXAS
                                  §                        6/2/2015 10:12:01 AM
                                  §                            DEBBIE AUTREY
                                                                   Clerk
        In re                     §             NOS.   06-15-00090-CR
     MARK EUGENE ENGLE            §
                                  §
                                  §
                                  §




     STATE'S RESPONSE TO APPELLANT'S REQUEST FOR MANDAMUS



                FROM THE 354TH JUDICIAL DISTRICT COURT
                        HUNT COUNTY, TEXAS

                     TRIAL CAUSE NUMBER 29,110
          THE HONORABLE RICHARD A. BEASOM, JUDGE PRESIDING



                                      NOBLE DAN WALKER, JR.
                                      District Attorney
                                      Hunt County, Texas

                                      KELI M. AIKEN
                                      First Assistant District Attorney
                                      P. 0. Box 441
                                      4th Floor Hunt County Courthouse
                                      Greenville, TX 75403
                                      kaiken@huntcounty .net
                                      (903) 408-4180
                                      FAX (903) 408-4296
                                      State Bar No. 24043442
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

INDEX OF AUTHORITIES ..................................................................................... ii

SUMMARY OF THE STATE'S ARGUMENTS ................................................ 2-4

STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ...................... 5-18
    The trial court is not required to rule on motions filed once the trial
    court looses jurisdiction.

PRAYER AND CERTIFICATES .................................................................... 23-74




                                                                                                             1
                                   INDEX OF AUTHORITIES



Cases

State ex. rel Vance v. Routt, 571 S.W.2d 903 (Tex. Crim. App. 1978) .................... 5



Rules

TX. C. CRIM. PROC., ART. 11.07 (Vernon 2015) ............................................... 2-3, 5


Tx. R. APP. PROC., R. 21.8 (Vernon 2015) ............................................................... 2

Tx. R. APP. PROC., R. 34.5(c) (Vernon 2015) ........................................................... 4




                                                                                                        11
                 IN THE COURT OF APPEALS FOR THE
              SIXTH DISTRICT OF TEXAS AT TEXARKANA

                                       §
                                       §
                                       §
   In re                               §            Nos. 06-15-00090-CR
MARK EUGENE ENGLE                      §
                                       §
                                       §
                                       §




 STATE'S RESPONSE TO APPELLANT'S REQUEST FOR MANDAMUS




TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the State of Texas, Appellee, in this appeal from Cause No.
29,110 in the 3541h Judicial District Court in and for Hunt County, Texas,
Honorable Richard A. Beacom, Presiding, now before the Sixth District Court of
Appeals, and respectfully submits this its brief to the Court requesting that
Appellant's Writ ofMandamus be denied.




                                                                                 1
                SUMMARY OF THE STATE'S ARGUMENTS

      Appellant is asking this Court to order the trial court to make rulings on a

case where it no longer has jurisdiction.   The trial comi's jurisdiction ended on

December 15, 2014, seventy-five days after Appellant was sentenced by the jury in

a punishment only trial. Tx. R. APP. PROC., R. 21.8 (Ve1non 2015). All of the

motions Appellant complains about were filed after the trial court's jurisdiction

expired.

      Furthermore, Appellant does have an adequate remedy at law to have each

of these motions addressed. Appellant has counsel appointed on appeal, Mr. Jason

Duff who is due to file Appellant's brief on June 1, 2015 in Cause No. 06-14-

00239-CR. Appellant has the ability to request return of any items not submitted

as evidence during the jury trial by following the procedures for a prope1iy hearing

with the seizing agency. Finally, Appellant also has the ability to challenge his

conviction in a post-conviction writ of habeas corpus pursuant to TEX. C. CRIM.

PRO., ART. 11.07 (Vernon 2015).

      As the trial comi was not required to rule on motions filed outside its

jurisdiction, Appellant has other appropriate remedies at law for the issues raised,

and Appellant cannot meet the substantive requirements to seek a writ of

mandamus, his request should be DENIED.




                                                                                       2
        STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR

      The trial court is not required to make rulings on motions filed
      after the trial court's jurisdiction expires.

                             Argument and Authorities

      In order to prevail in a request for writ of mandamus an appellant must show

that: 1) no other adequate remedy at law is available; and 2) the act appellant seeks

to compel is ministerial in nature. State ex. rel. Vance v. Routt, 571 S.W.2d 903,

907-908 (Tex. Crim. App. 1978).

      A. The motions Appellant filed were all submitted after the trial
      court's jurisdiction expired.

The trial court's jurisdiction ended on December 15, 2014, seventy-five days after

Appellant was sentenced by the jury in a punishment only trial. Tx. R. APP. PROC.,

R. 21.8 (Vernon 2015). All ofthe motions Appellant complains about were filed

after the trial court's jurisdiction expired. Appellant is asking this Court to order

the trial court to make rulings on a case where it no longer has jurisdiction.

      Specifically, Appellant filed a letter to the Hunt County District Clerk asking

her to send him a copy of the District Clerk's record and Grand jury minutes on

December 22, 2014. This letter was filed seven days after the trial court's

jurisdiction expired and it was not a motion filed with the Court but rather a letter

to the clerk. Fmihennore, Appellant has already attempted a writ of mandamus




                                                                                        3
against the Hunt County District Clerk for failure to provide these materials and

this Court denied the motion on April14, 2015 in Cause No. 06-15-00055-CR.

      Three other motions were filed with the trial court in February, March and

April of 2015 and all after the trial court's jurisdiction expired.

      B. Appellant does have another adequate remedy at law for each
      of the issues presented in the untimely motions.

      Furthermore, Appellant does have an adequate remedy at law to have each

of these motions addressed. Appellant has counsel appointed on appeal, Mr. Jason

Duff. Mr. Duff is working to file the appeal in this case with a brief due on June 1,

2015 in Cause No. 06-14-00239-CR. The motions Appellant filed asked for

specific items to be included in the District Clerk's record. If appellate counsel

finds it necessary for these items to be included in the clerk's record, or finds the

record in any way deficient, his remedy is to send a letter to the trial court clerk to

prepare and file a supplemental clerk's record. Tx. R. APP. PROC., R. 34.5(c)

(Vernon 20 15).

      Appellant does have an adequate remedy at law for the request to return

specific items seized in his motion filed February 11, 2015. Any items not

submitted as evidence at trial were retained by the seizing agency, Greenville

Police Depmiment. A defendant who requests return of property that has not been

admitted as evidence must either request those items be returned by the district

comi within its timeframe where it retains jurisdiction over the case, otherwise


                                                                                          4
they may request return of the items through a property hearing held according to

Greenville Police Department procedures. When items are seized the defendant

receives a notice of seizure and a property receipt from the seizing agency.

      Appellant also has a pending appeal and can raise or attack the trial comi's

ruling on the motion to suppress in his appeal. Therefore, any issues Appellant

attempted to address in the Motion to Dismiss with Prejudice for Invalid Search

Warrant should be raised in the court with proper jurisdiction- the appellate court.

      Finally, Appellant also has the ability to raise this issue on a writ of habeas

corpus. TEX. C. CRIM. PRO. ART. 11.07 (Vernon 20 15).

      As the trial court was not required to rule on motions filed outside its

jurisdiction, Appellant has other appropriate remedies at law for the issues raised,

and Appellant can not meet the substantive requirements to seek a writ of

mandamus, his request should be DENIED.




                                                                                        5
                                   PRAYER

     The State prays that the Court will deny Appellant's request for writ of

mandamus.


                                            Respectfully submitted,


                                           NOBLE DAN WALKER, JR.
                                           District Attorney
                                           Hunt County, Texas


                                              Is/ Keli M. Aiken
                                           KELI M. AIKEN
                                           Assistant District Attorney
                                           P. 0. Box 441
                                           4th Floor, Hunt County Courthouse
                                           Greenville, TX 7 5403
                                           State Bar No. 240434482
                                           (903) 408-4180
                                           FAX (903) 408-4296




                                                                                6
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body of the brief and contains 866 words, and was prepared on
Microsoft Word 2013.



                                                 /s/ Keli M. Aiken
                                              KELI M. AIKEN
                                              First Assistant District Attorney
                                              P. 0. Box 441
                                              4th Floor Hunt County Courthouse
                                              Greenville, TX 7 5403
                                              (903) 408-4180
                                              FAX (903) 408-4296
                                              State Bar No. 24043442



                          CERTIFICATE OF SERVICE


      A true copy of the State's brief has been provided to Mr. Jason Duff,

Appellant's counsel on appeal by placing a copy in his box in the Hunt County

District Clerk's Office, today June 1, 2015, pursuant to local rules.



                                                 Is/ Keli M. Aiken
                                              KELI M. AIKEN
                                              First Assistant District Attorney




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