                                                                ~~         '6/0 -02
                        CAUSE NO.   WR-82,810~01


EX PARTE                              §            I:t:l 'J;T;li,'L. (!OURT OF .
                                      §            CRIMINAL APPEALS OF
MARCO POLO MEDINA-GONZALEZ                         THE STATE OF TEXAS
                                      §


                MOTION FOR LEAVE TO FILE PETITION FOR
                          WRIT OF PROHIBITION


TO THE HONORABLE JUDGES OF THE COURT OF·CRIMINAL APPEALS:

   Comes now Marco Polo Medina-Gonzalez; 'relator irt the above-

entitled and numbered cause, and respectfully moves 'this Court

pursuant to Texas Rule of Appellate Procedure'2ll(a), 12l(a)(l)

to grant leave to file the accompaning original patition for

writ of prohibitiort.




   Wherefore, premises considered, Relator prays that this

Honorable Court of Criminal Appeals grant his Writ of Prohibi-

tion in the interest of justice.
                                                                   · RECEIVED IN
                                                                COURT OF CRIMINAL APPEALS

                                                                      APR 2 8 2015
                                                                   Abel Acosta, Clerk

                        CERTI~ICATE       OF SERVICE

   I, Marco Polo Medirta-Gonzalez, do certify that a true and

correct copy of this instrument has been served by placing same

in U.S·. Mail, postage prepaid, on thi. 23rd day of April, 2015,


                                                   ~co (#cb~-bC¥7ZC:iez
addressed to:
District Attorney-Abelino Reyna              Is!
P.O. Box 2451                               Marc Polo Mdina-Gonzalez
Waco, Texas 76703                           TDCJ-ID #1~07021
                                            James v. Allred Unit
                                            2101 F.M. 369 North
                                            Iowa Park, Texas 76367-6568
                   IN THE COURT OF CRIMINAL APPEALS
                                    FOR THE
                               STATE OF TEXAS

EX PARTE                                 §
                                                   WR-82,810-01
                                         §
MARCO POLO MEDINA-GONZALEZ

                APPLICATION FOR WRIT OF PROHIBITION



TO THE HONORABLE JUDGES OF THE:COURT OF CRIMINAL APPEALS:

   Comes now Marco Polo Medina-Gonzalez, hereinafter styled

relator •. and files this application for writ of prohibition-to

prohibit The 54th Judicial District Court         ~f    Mclennan County,

Texas, respondent,    f~om'denyinq      relator's Writ of Habeas Corpus

pursuant to Article 11.07, or from. encouraging this Honorable

Court to deny relator's      ~rit   of Habeas Corpus in     Cau~e    No. 2012-

2077-C2A, styled Ex parte Marco Polu          Medina~Gon~alez.      In support

of this application, relator shows the following:


                                        I.

   On December 11, 2014, Marco POlo Medina-Gonzalez filed an

appljcation for Writ of habeas corpus pursuant to Article 11.07,

Tex.Code of Crim.P. with the District Clerk of Mclennan County,

Texas, alleging inter alia Ineffective Assistance of Counsel, and

Ineffective   ~ssi~tartce   of. Appellate Counsel, in which Judge Matt

Johnson designated these two issues specifically, and ordered by

decree tr"ial counsel and Appella,te counsel, which are one in the

same person, Dentbn B. Lessman to submit an            ~ffidavit    by January

211 2015. A copy of this order is attached as Exhibit A. Prior to

this order via operation of law, the District Attorney answered

Mr. Gonzalez allegations•       Mr.Reyna (district attorney) reflected

                                    1 of 4
on the fact that Mr. Gonzalez was still conducting his direct

review process and that as a matter of fact, Mr. Gonzalez            attar~


ney had filed a timely motion to extend the time to file the

petition   ~or     discretionary review on December 19, 2014. The      dead~

line was on December 22, 2014. Mr.Reyna sUbsequently suggested

that due. to Mr. Gonzalez status of the         unde~lyinq   convictinn,

that .his application for habeas       re~iew   did not appear to be ripe

for determination and should be        dism~ssed   a~   being prematurely

filed. A copy of the State'.s answer is attached as Exhibit B.

Finally, the State habeas court judge submitted a findings of

fact and conclusion of law Memorandum. In the Memorandum the

trial cburt made an assessment of the issUes but failed to order

a decision to Grant or Deny Relator's writ of habeas corpus. In

lieu, and alternatively, the trial court judge recommended. and

.supposedly   deleq~ted    this Honorable Texas Court of Criminal

Appeals to deny relief. A copy of the trial court's finding of

fact and CDnclusion of law is attached as Exhibit C. This            Honor~


able Coqrtrecieved Relator's application for 11.07 Writ of Habeas

on January 30, 2015; The cause number in this Court is

WR.:..82,810-0l.


                                        II.

   The Respondent's proposed ~ction is a'clear violation of law

based on   th~     factB of this case because the Direct Review process

in Rel~tor's case was stili pending due to the fact that the m~n­

date had not been issued. Relatbr contends that til. this day he

has yet to recieve      ~ny   document or paperwork from the court

that's entitled        "MANDATE", and declares to this court that to

the extent of his knowledge, he has'nt been issued a mandate from


                                   2 of 4
th~    Tenth Court of Appeals thus, rendering the judgement not

final. Qelator contends that:hhis Honorable Court qf Criminal

Appeals has since ruled on the Petition for Discretionary ReView,

in which it was refused on March         3~   2015. However, during the     ~\~


t~me    period whect Relator submitted his Writ of Habeas Corpus,

Relator had yet to submit his PDR, in .fact, he was still waiting

to see if the Court would grant the extention of           t~me.   Therefore,

as stated by the Representative of the State,"Relator's habeas

review    w~s   not1~~~pi~.The   habeas tourt did not have   juri~diction

to consider an application for writ of habeas corpus pursuant to

Article 11.07 until the felony judgement fioffi which relief is

sought becomes final. Article 11.07 § 3 (a)           V.A.C.C.P~   E~:parte

Thomas, 953 S.W.2d 286, 289 (Tex.Crim.App. 1997): Ex parte Brown

662 S.W.2d 3      (Tex.Crim~App.   1983): See Ex parte Renier,      734   s.w.?
2d 349 (Tex.Crim.App. 1987) (Teague, J., dissenting)           (discussing

rationales for final felony convtttion requirement). A             direct,~


appeal is final when the mandate from the Court of Appeals                ~s1~~

issues. Carter v. State, 510 S.W.2d 323, 324 (Tex.Crim.App. 1974)

Prior to the mandate,. a judg.ement is not final.

      Relator's claim is not ripe, because the applitati6n for writ

of habeas corpus was filed during the pendency of the direct

appeal. Consequently, as recommended by Mr. Reyna to the habeas

court judge, Relator's Writ of habeas Corpus should have been

dismissed without prejudice for being prematurely filed.


                                     III.

      The relator has no adequate remedy at law to pursue the

requested relief other than this application.



                                     3 of 4
                                     IV.

     This Court has jurisdiction to issue a writ of prohibition

in this cause under Article 5, Secti;n 5 of the Texas Constitu-~~

tion and Article 4.04 of the Code of Criminal Procedure.

     WHEREFORE, Relator prays the Court grant this application

and issue a writ of prohibition directing          ~he   54th District Court

of   Mclenna~   County, Texas, Respondent, to dismiss without pre-

judice,   Relato~'s   Writ of Habeas Corpus due to premature filing.




                       CERTIFICATE OF SERVICE

     I, Marco Polo Medina-Gonzalez, do certify that a true and

correct copy of this instrument has been served by placing same

in U.S. Mail, postage    prep~id,   ~n   this 23td day of     April~   2015,

addressed to:

District Attorney-Abelino Reyna
P.o. Box 2451
Waco, Texas

                                             /s/     C(J  /!ltd'.-
                                                                c-v-   &;;r;Zc:/e Z
                                             Marc Polo Medina-Gonzalez
                                             TDCJ-ID I 1907021
                                             James V. Allred Unit
                                             2101 F.M. 369 North
                                             Iowa Park, Texas 76367-6568




                                    4 of 4
                    CAUSE NO. WR-82,810-01

EX PARTE                        §        IN THE COURT OF
                                         CRIMINAL APPEALS OF
                                §
MARCO POLO MEDINA-GONZALEZ               THE STATE OF TEXAS
                                §




                             EXHIBIT A


RELATOR'S TRIAL AND APPELLATE ATTORNEY DENTON B. LESSMAN:AFFIDAVI'f
                                             NO. 2012-2077-C2A

     EX PARTE                                           §     IN THE DISTRICT
                                                        §
                                                        §
                                                        §
     MARCOP.OLO                                         §
     MEDINA-GONZALEZ


                              AFFIDAVIT OF DENTON B. LESSMAN

           "My name is Denton B. Lessman. I am over the age of eighteen (18) years, and 1 am

    competent to make this affidavit.        I deClare under penalty of perjury t;hat I have personal

    knowledge regarding the facts stated herein and they are true and correct to the best of my

    knowledge."

           "This proceeding is a post-conviction habeas corpus proceeding that was initiated by Mr.

    MARCO POLO MEDINA-GONZALEZ (herein "MEDINA'') in which he seeks relief based upon

    his claim that I was ineffective during my representation of him in cause number 2012-2077-C2in

    which he was charged, tried before a jury of his peers, convicted and sentenced by said jury for the

    offense of possession of a Aggravated Kidnapping, Aggravated Robbery

           "In this matter, the Honorable Matt Johnson has ordered that I provide the Court with an

,   a,ffid~y!t ~_ddre§sjp_g both,M;EDINA's   cjaim and .,the issue!)that were_spec!Jically ciesigQated by th~

    Court in its order dated November 12, 2014."

           "In order to ascertain the nature of the claim(s) made by MEDINA, I have been provided

    with a copy of the 39 pages submitted to the Court by L by MEDINA"

           "Upon reviewing the allegations contained therein, the issues designated by the Court, and

    reviewing Rule 1.05 of the Texas Rules of Professional Conduct and the comments associated

    therewith, I believe that it is necessary for me to disclose the following confidential information




                                                                          I~1111jiiiiJIIII~IIIIJIII~IIIIJ~~ ~~~ !llllllllllll
and that my disclosure is authorized by said rule.''

       "The Honorable Trial Court has designated one issue for my response. Specifically,

MEDINA'S allegations that I failed to properly cross-examine or otherwise impeach the testimony

of Juawice Jones (Applicant's supporting brief, page 15). After reviewing MEDINA'S filed

documents, I am unable to determine what MEDINA alleges about my cross examination that he

asserts is deficient. He has failed to allege any facts supporting his claim. I have a:lso reviewed the

cross examination i11 the reporters record and find no additional issues that would have been

beneficial to cross examine Ms. Jones with."

       "MEDINA'S case is currently under appellate review with a petition for discretionary

review due on or before Wednesday, January 21, 2015."

        "MEDINA has communicated with me regarding the merit of his 11.07 claim on

l/09/2015. I have attached a copy of said letter hereto and incorporate it in my response for the

purpose of addressing the issues designated by the Court."


                                                         m.
                                                                               f; Digitally signed by .Denton B.
                                                                                     Lessman
                                                                      p -'.      ~N:cn=Denton B.lessma~o=la~
                                                         : · .·     · p·:~-              eofDentonB.Lessman,ou,
                                                            ·.    · .            ·             !essmanAtty@aolco!"f". c=US
                                                                        (_il         Date: 20lS.OU5 1.5:02:39 -06'00'


                                                       Denton B. Lessman
                               , f'fr. _1/erJWn                                            - /j.    t-ess~­

                               ··AlfortJey
                                .
                                                                       o.,t ·f-cuv          .




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                                . ..
                    CAUSE NO. WR-82,810-01

EX PARTE                         §       IN THE COURT OF
                                §        CRIMINAL APPEALS OF
MARCO POLO MEDiNA-GONZALEZ               THE STATE OF TEXAS
                                §




                             EXHIBIT B



  THE STATE'S ANSWER TO RELATOR'S WR+T OF HABEAS CORPUS ll.Q7
                                    No. 2012·2077·C2A

                I N THE 54TH JUDICIAL DISTRICT COURT ,--, ~ ~,
                     OF MCLENNAN COUNTY, TEXAS      ~/,/ /'~ . "{<:<"
                                                         A.4:f.f.'-. ~~ /
                                                                              ~~~i~c '~               -
           EX PARTE MARco POLO MEDINA-GONZALEZ ·¥?.._·.;-/~e~).. /.~
                                                                                      i?   ;?J:"-'Y   ~
                                                                                           ·/·

                            STATE'S ANSWER TO AN APPLICATION
                               · FOR WRIT OF IIABEAS CORPUS' -


       Pursuant to Article 11;07 of the Code of Criminal Procedure, the State of Texas,
by and through the Criminal District Attorney for McLennan County, Abelino 'Abel'
Reyna, files this answer to the Application for Writ of Habeas Corpus filed by MARCO
POLO MEDINA-GONzALEZ, hereinafter called "Applicant." This is a case other than a
case in which the death penalty was assessed.
       Applicant alleges eight grounds for relief in his application. The application is
the first post-conviction writ he has filed.
           CONCERNING THE NEED FOR AN EVIDENTIARY HEARING
       There are no controverted, previously unresolved facts material to the legality of
Applicant's confinement which would necessitate a hearing. No evidentiary hearing is
      ..
needed or warranted under this Application, because any information could be
obtained by affidavit or otherwise.
                        ALLEGATIONS IN THE APPLICATION
       Applicant contends that:
   1) He was convicted on the basis of a false police report;
   2) There was no evidence to support the conviction; and;
   3) He was denied effective assistance of counsel.



                                               1
                                      GENERAL DENIAL
       Pursuant to Article 11.07, all matters alle~ed in the application not specifically
admitted by the State in this answer are denied.
                                ANSWER OF THE STATE
         Based on the Applicant's representations in his Application and Supporting
Brief, it appears that all three of the asserted grounds for relief complain of a scrivener's
error in a police report, which misstates Applicant's date of birth. Other than that, the
assertions. and. representations-set forth .. in the:Application.and.Supporting Affidavit.
appear to be mere ramblings, setting forth no basis in fact, law, or equity which would
entitle Applicant to habeas relief.
       Answering further, the State would show that the Tenth Court of Appeals
affirmed the Applicant's conviction in its memorandum opinion issued in Cause
Number 10-13-00394-CR, issued November 21, 2014. The deadline for filing a petition
for discretionary review is December 22, 2014. On December 19 2014, Applicanfs
                                                                          1




attorney Mr. Denton Lessman, filed with the Court of Criminal Appeals a· motion to
extend the time   to file the petition for discretionary review.   Due to the appellate status
of the underlying conviction, the application for habeas review does not appear ripe for ,
determination, and should be dismissed.
                                 CONCLUSION AND PRAYER
       The State recommends to the Trial Court that this writ be denied as frivolous, as
there are no legal or factual grounds to support Applicant's claims. Alternatively, this
writ should be dismissed as being prematurely filed.
Respectfully Submitted:
                                           Abelino 'Abel' Reyna
                                           Criminal District Attorney




                                              2
McLennan County, Texas
219 North 6th Street, Suite 200
VVaco, ~exas 76701
Phone (254) 757-5084
Fax (254) 757-502w

       /;-7--!---
Steiling armo
Chief, Appel te Division
State Bar # 09019700




   3
                                     No. 2012-207T-C2A




                                    DESIGNATION OF ISSUES
                                    ON AN APPLICATION FOR
                                    WRIT OF HABEAS CORPUS


       On Decemberll, 2014, applicant MARCO POLO MEDINA-GONZALEZ filed an

application for writ of habeas corpus pursuant to Article 11.07, Tex. Code Crim. ?. with
the District Clerk of McLennan County. The District Attorney's office was served with a
copy of the application by email. Applicant has alleged facts that, if true, may entitle
him to relief. Therefore, the trial court designates the issues to be resolved herein as:
   1. What are the circumstances surrounding Applicant's claim that Denton B.
       Lessman, Applicant's trial and appellate counsel, provided ineffective assistance
       of counsel and his counsel's reasons and reasoning for his conduct whether by
     · ·a.cr<'>Y: ·omission, regardmg ·Applicant's aiiegations ··tftafhe ·''consplred Wiffi.ilie ,__
       district attorney to imprison him?" (Ground 3; Supporting Brief, p. 12)
   2. Whether the performance of Applicant's trial and appellate counsel, Denton B.
       Lessman, was deficient and fell so far below the standard of prevailing
       professional norms, that counsel was not functioning as the counsel guaranteed
       the Applicant by the Sixth Amendment?




                                               1
                                            3. Whether Applicant has overcome the strong presumption that Applicant's trial
                                                   and appellate counsel, Denton B. Lessman, rendered adequate assistance and
                                                   made all significant decisions in the exercise of reasonable professional judgment?
                                            4. Whether Applicant's trial and appellate counsel, Denton B. Lessman's,
                                                   performance fell within the wide range of reasonable and professional assistance?
                                            5. If Applicant's appellate counsel,. Denton B. Lessman's performance was deficient,
                                                   whether his specific deficient acts or omissions, in their totality, were so serious
                                                    as to undermine confidence in the outcome and· to have deprived Applicant of a
                                                   fair trial and appellate review-one whose result is reliable.,...such that there is a
                                                    reasonable probability that but for said deficient performance, if any, the result of
                                                    the appellate review would have been different?
                                            6. Whether other findings of fact and conclusions of law should be made to resolve
                                                    the issue presented. by applicant. herein.
                                                                                                                                     ORDER

                                                   The Trial Court determines that these issues can be resolved by affidavit and a
                                    hearing is not necessary. Therefore, the trial court enters the following orders:
                                                    Denton B. Lessman is hereby ORDERED to provid~ this court with his individual .
                                    affidavit addressing applicant's claims and the issues designated above .
                                               . , Applicant is hereby ordered to provide this Court with any additional
                                                                                           __ _....,_, _ _ ··,·-·-•:•••;•                                                                        0                                     0
-'>-·~·······~··   ~-.·-·-·-   '-~~-W -·-~••••·-••·-·~·V>'·~·-··---~-A·•--·-··--·'•<••-;
                                                                                                              -             ••·--~-~-·-·•   ··~··   A   -·''~""M<'   ·-•Aqo   '"'~--<~- y-.,_,       •'•o;...   '   ••••yo••o   ··o~
                                                                                                                                                                                                                                           ..   ~




                                    information or proof applicant believes would be helpful to this Court in resolving the
                                    issues presented herein.
                                                   The Clerk of the Court is hereby ORDERED:
                                                   1. To deliver to Denton B. Lessman, copies of:

                                                                   a. The application filed on December 11, 2014;
                                                                   b. The State's Answer filed on December 22, 2014; and
                                                                   c. This Order;

                                                   :2. To deliver to the Court of Criminal Appeals a copy ofthis Order.
                                                                                                                                    Page 2 of3
                                                                                         TIMETABLE
                                                           Unless a continuance is granted, all affiqavits and proof shall be filed with the
                                    Clerk of this Court no later than January 21, 2015, 2014. This Court will enter
                                    appropriate findings no later than February 4, 2015.

                                                           Signed and entered this   2. "L.day of   JJ.r-r: . ,2014.


                                                                                             Matt Johnsoil
                                                                                             Judge Presiding




.   --····~·-·-··--~- ···.····••¥·~·"
                                                     ..
                                        ............•... • ·-·-· ........




                                                                                           Page 3 of3
                    CAUSE NO. WR-82i810-0l
EX PARTE                         §         IN THE COURT OF ~~I~~~
                                 §         CRIMINAL APPEALS OF
MARCO POLO MEDINA-GONZALEZ                 THE STATE OF TEXAS
                                 §




                             EXHIBIT C



TRIAL COURT'S FINDING OF FACT AND    CO~CLUSION   IN HABEAS PROCEEDING
                                                                              //.  ""')
                                                                                                           ~
                                                                                                                             ,{f.&..,
                                                                                                                            ~··:o

                                    No. 2012-2077.,C2A                       ~ a~'·~~/ '~(})
                                                                                             ~                                          ~"'"""'
                                                    .                                         ...
                                                                                    1
                                                                                    \                 ' If»-? ·,               4c..
                                                                                                                                 ..
                                                                                                          ~ ~·
                   IN THE 54rn JUDICIAL I;>ISTR!Cf COURT                                                            "'.t1&       "'T.

                                                                                                      ~                   (~'((".
                                                                                                                            11
                        OF MCLENNAN COUNTY, TEXAS                                                             ~             1"



            EX PARTE MARCO POLO MEDINA-GONZALEZ


                      FINDINGS OF FACT AND CONCLUSIONS OF LAW
                                   ON AN APPLICATION FOR
                                   WRIT OF HABEAS CORPUS


       On December 11, 2014, applicant MARCO POLO MEDINA-GONZALEZ filed an
application for writ of habeas corpus pursuant to Article 11.07, Te:x. Code Crim. P. with
the District Clerk of McLennan Couhty. The D1strict Attorney's office was served with a
copy of the application by email. Applicant has alleged facts that, if true, may entitle
him to relief. Therefore, the trial court designated the issues to be resolved herein as:
   1. What are the circumstances surrounding Applicant's claim that Denton B.

       Lessman, Applicant's. trial and appellate counsel, provided ineffective assistance
       of counsel and his counsel's reasons and reasoning for his conduct, whether by
       act or omission, regarding Applicant's allegations that he 'iconspired with the
       district attorney to imprison him?" (Ground 3; Supporting Brief, p. 12)
   2. Whether the performance of Applicant's trial and appellate counsel, Denton B.
       Lessman, was deficient and fell so far below the standard of prevailing
       professional norms, that counsel was not functioning as the counsei guaranteed
       the Applicantby the Sixth Amendment?




                                              1
                                                               1111111   ~1111~11 911111111111 1~1111111 /II/IIIII/III.
                                                                     16163623!
..



       3. Whether Applicant has overcome the strong presumption that Applicant's trial
           and appellate counsel, Denton B. Lessman, rendered adequate assistance and
           made all significant decisions in the exercise of reasonable professional judgment?
       4. Whether Applicant's trial and appellate counsel, Denton B. Lessman's,
           performance fell within the wide range of reasonable and professional assistance?
       5. If Applicant's appellate counsel, Denton B. Lessman's performance was deficient,
           whether his specific deficient acts or     o~ssions,   in their totality, were so serious
       .~ . 11.5 toundEmnine.contidence·iTI~ili~ outco~e ~~t'tc;ha;~d~p·a~;d ..Applic~t'~£"; -         -·· ~.--

           fair trial and appellate review-one whose result is reliable-such that there is a
           reasonable probability that but for said deficient performance, if any, the result of
           the appellate review would have been different?
       6. Whether other findings of fact and conclusions of law should be made to resolve
           the issue presented by applicant herein.
     FINDINGS AND CONCLUSIONS
       1. Denton B. Lessman, Applicant's trial and appellate counsel, filed an affidavit

           addressing Applicant's claims on January 21, 2015.
       2. The affidavit is found to be true, correct, and worthy of belief. The affidavit is
           accepted for all purposes .
     . . 3 .. Applicant.has alleged no Jactualbasis for the assertion that his triaL and appellate
           and the District Attorney conspired in any wayagainst the Applicant. Applicant
           complains of a scrivener's error on Applicant's date of birth contained in a police
           report. This error had no relevance or bearing on. the case, and falls far short of
          showing any sort of collusion.
       4. Applicant's trial and appellate counsel's performance was at all times sufficient
          and fell within the standard of prevailing professional norms so as to afford
          Applicant effective assistance of counsel as guaranteed by the Sixth Amendment.


                                                  2    .
    5. There has been no showing that Applicant's trial and appellate counsel rendered
       inadequate assistance in his representation of Applicant, nor any showing that
       counsel's significant decisions were the result of anything other than the exercise
       of reasonable professional judgment.
    6. The performance of Applicant's trial and appellate counsel fell within the range
       of reasonable and professional assistance.
    7. There are no other issues material to Applicant's claims which need to be
       resolved.
                    RECOMMENDATION OF THE TRIAL COURT
       Therefore, the Trial Court recommends to the Honorable Texas Court of Criminal
Appeals that all relief be denied.
                                 ORDER TO THE-CLERK

       Now, therefore, the Clerk of the Court is ORDERED to immediately transmit to
the Court. of Criminal Appeals all necessary documents not heretofore transmitted, and
. a Clerk's Summary Sheet and a certificate reciting the date upoh which this finding was
made, and this order, finding and recommendation.
      'r£ the Clerk has received any communication from Applicant before such ,
transmissi~ni a copy of said communicationshall also be sent to the Court of Criminal


       A copy of this Order shall also be mailed to applicant at the address shown on
the application.

       Signed and entered this   ~\




                                         Judge Presid1ng


                                            3
