                                               INMATE'S DECLARATION




                                                     , am the applicant I petitioner (cirCle one) and being presently
incarcerated in   /.&A/kL           Cowiii~Y
                                                        ' , declare under penalty of perjury that, according to my belief,
the facts stated in the above application are true and correct.
                                                                                                                             ...




                               ·;




                                                                       ...   "•·:




                                    \\




                                                                                       This document contains some
                                                                                       pages that are of poor quality
                                                                                       at the time of imaging.
     <0!-.




                                         MOTION FOR LEAVE TO FILE
                                IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                                             AT AUSTIN, TEXAS



             ROBERT LEE SMITH,                                    NOS:961276 & 966324
                        APPLICANT,
             vs.
             DISTRICT CLERK, HARRIS
             COUNTY I TEXAS
                               RESPONDENT I


                                               MOTION FOR LEAVE TO FILE
                                                                   \
                                               APPLICATION FOR MANDAMUS


             TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
                   NOW COMES ROBERT LEE SMITH. aoolicant.         complaininq       of   District   Clerk of '
              Harris. Countv. Texas Resoondent. and oursuant to Rule 211 of the Texas Rule of
              Appellate       p~cedure    in   criminal    cas~s moves this court to Grant applicant
              leave to file this application for a Writ of Mandamus tendered contemporaneous-
              ly with this motion.
                    Applicant prays that the motion be Granted, the said application for Mandamus
              be filed and set down for a hearing, that the relief requested be qranted, and
              for     other   relief,    general     and   special, including a stay of the proceeding
             . below until the matters complained of in said application are cured.




                                                                       Ellis              980
                                                                       Huntsville,Texas 77343

                                                   CERTIFICATE OF SERVICE

              I hereby certify that a copy of the above motion for leave to file
              for Mandamus was delivered or mailed to Resoondent at Resoondentis
             'this,?J aav of       5-eo.f:.e.Pnb£/L
                                      ,                                    ,2o1s:



I'

I



~
                                                                                                                               '·
                            IN THE COURT
                                   '
                                         OF CRIMINAL .APPEALS OF TEXAS
                                                                 !

                                                        AT AUSTIN,TEXAS


Robert Lee Smith                                                                           Nos:961276 & 966324
               Applicant,
Vs.
District Clerk., Harris
Countv. Texas
            Resoondent.

                                              APPLICATION FOR MANDAMUS

      TO THE HONORABLE. COURT OF CRIMINAL APPEALS OF TEXAS: '
NCM COMES ROBERT LEE SMITH. APPLICANT.ann asks t.his court                                                              to          issue              a   Writ
of     Mandamus       to    the      District               Clerk, of Harris County, Texas respondent, to
require the respondent describe relief requested and in support of this appli-
cation       would      show     the        Court the following; That every since jury trial and
on     appeal applicant has been informing the respondent about all records along
with transcripts, to allow applicant his constitutional rights to prepare for
his appeal under the Six Amendment of the United                                               Stat~~-~ns~i-~~.!:~~12..'                           Due Process
Law and eaual Protection.
                                                             I-
                                                     FACTUAL BACKGROUND


Applicant was tried for the offense of aqqravated sexual assault                                                                    <:~·~-~I:!_i_l_?_i!:!_

a case stvled, The             State___ ?!__T~x:.::a:.::s_..:..V::::s..:..._....:A:..:.P~::JP~::.:l:..:l::.:.c::;;:a:::n=t' Numbers 961276         &   9.6.6324,
in     the     184th.      Judicial           District Court Of Harris County, Texas. The                                                              Indic~-
              ---                                                             ---·- ------- ---
ment     was      returned      ~~~--24                   · day of October, 2003. '!'rial was begun on the
3     day    of    August,2003,             and completed on the 15 day of November,2003. A Jury
                     ·-·---- ----
found        applicant      guilty          and 1assessed punishment at fifty(50)years concurrent
                                                                                                                                             '7•

in the Texas Department Of Corrections (see exibi t 'b' attached hereto.) Notice of
Appeal was timely              filed        on the 28 day of November 2005. ('see lm' all exibits
attached hereto) Aplicant filed defendant(applellant's request for a transcrip-
tion of the Reoorter's ·Notes(see exibits A-B-D-E-F attached hereto). The onlv
respondent         response        was        held         about request·on Feburary 28,2008,(see exibit
C attached hereto). Subsequently, the court reporter has refused to prepare the
transcript,          contending           that.        the        applicant                was · not indigent. (see exibits
~~~·    attached hereto) Applicant subseqvently requested the trial court to enfo-


                                                                     (l).
rce his order(see exibit E.F.attached hereto). But the trial court has refused
to do so.
                                          II.

                                  REQUEST FOR RELIEF


  Applicant requests in this application that this         court~·direct   respondent to
order the court reporter to prepare copy of the trial proceedings below without
charge to applicant, as required by law.
                                          III.
                                     JURISDICTION


     This court has iurisdiction to consider this aoolication oursuant to art-5,5
of the Texas Constitution and article 4.04 Of Criminal Procedure.
                                          IV.


                               AUTHORITIES AND ARGUMENT


      Applicant contends that he is indegent without funds, property or securities
in     which to pay for trial court records, Therefore, the documents and records
should be afforded at no cost to defendant in order that he mav             construct an
Aooeal. and. suooort of the foreaoina defendant cites the followina cases~

ECKRIDGE V. WASHINcm::>N. 357 U.S.214. 7R S.GT. 1067(1959). SMITH V. RF.NNETT.365
U.S. 477 ,83'-:.S.CT. (1963): ORAPER V. WASHINGTON, 372 U.S.487. S.CT. 774ll963l:
GRIFFIN V. ILLINOIS, 35      U.S. 2. 76 S.CT.5R5(1956): LONG V. DISTRICT muRT OF
I~A,     385 U.S. 92, 87 S.CT.362Cl966): WILLIAMS V. OKI.AHOMA.::\Q'l TT.S. 458,89 S.CT.
1818(1969): GARDNER. V. CALIFORNIA. ::\91 TLS    370~89   S CT.582(1969):NEVER V.CHICAGO,
404 U.S.189,92 S.CT.30(197ll:CURRY V-STATE 488 S.W.2d 606 Tex.CR.APP.(l973):
U.S.V. DAVIDSON,483 F.SUPP.l253(1977): EX PARTE MAYS,510 S.W.2d 606(TEX.CR.APP.-
1975): CAR'l'UERIGHT V. STATE,527 S.W.2d 535 CTF.X-CR APP.l975}:COVILLOR V.STATE,
577 S.W.2d 118. 120-128(TEX.CR.APP.l977}: ABNOR V. STATE.712 S.W.2d l3HTEX.-

rn.APP.l986).




                                          (2)
·,




                                                 :V.

                                          CONCLUSION

     (1) Aoolicant has no other leaal remeov available to him other than this aooli-
     cation for mandamus

     (2) This action   sought   is,   order the facts of this case, is essence, a mere
     ministerial act which respondent has a legal duty to perform.

     (3} Aoolicant has orooerlv requested        respondent                            to   perform which respJndent
     has refused.
                       COPIES OF EXHIBITS SHOULD BE CERTIFIED COPIES
                           ATTACH AFFIDAVIT OF WITNESS TO FACT:

     WHEREFORE,PREMISES CONSIDERED. applicant prays that this application be Granted
     and that respondent be ordered continue with relief requested.

                                                                                                       ..   ·:-.




                                        Respectfullv                         7~'>
                                                                             Robert Lee Smith {pro se)
                                                                             Ellis Unit/1697 FM 980
                                                                             Huntsville,Texas 77343




                                            ( 1).



                                            -~· ~ ~ ... '--. -.r _ _._~:·.:'_ -·····
                                                AFFIDAVIT



STATE OF TEXAS·
COUNTY OF WALKER

BEFORE ME. the             undersigned          authority,        on    this date personally
appeared        applicant          who       upon     being     duly    sworn did depose and
state;


         My     name       is     Robert        Lee Smith and I am the relator in the
above     cause.       I        have     read       the   above application for Mandamus
and     state     that          the-    factual       allegations
and correct.




         SUBSCRIBED AND SWORN TO BEFORE ME.the undersigned authority,
by the said applicant on this the]/                           day of   Jee/eJ?16.Etf.    2015,
to certify which witness my hand and seal of office.



                                                              N9TARX   ~UBLIC   IN AND FOR
                                                              ~~~tv.P~ ,COUNTY,TEXAS~

                                   CERTIFICATR :oF SERVICE



        I herebv c~rtffv that a coov of the above Aonli~Rtion for
Mandamus was delivered or mailed
address on this            ~)          day   of_5_·~~-=~l:..¥~~
..
     EXHIBIT-A)




     EXHIBIT-Al




                  \   .
                                                                                           November 2812007;
                                            CAUSE NOS:#961276 & 966324                                                               L   <t(   tlfl tl
                                                                                                                            £X(tv[l             1f

Robert Lee Smith                                                               In The 184th.District Court
Vs.                                                                           Of Harris County, Texas
The State Of Texas

                                                                                                      ·~   -.r;::::..- .
             DEFENDANT 1 PRG-SE LITIGENT 1 REQUEST TO RECEIVE FREE PHOTO-COli~ ~F THE
           TRIAL COURT REPORTER'S/CLERK'S RECORDS IN THE ABOVE ENTITLED NUMBERED
CAUSE ( S) IN ACCORDENCE WITH RULES OF APPELLATE PROCEOORE 20. 2 VERNON 1 S ANN. ,c 'i1
                               AND THE TEX. CODE OF CRIM. PROC. 26.04(M).



TO THE HONORABLE JUDGE OF SAID COURT:

      COMES t-l<Ji, ROBERT LEE SMITH. clefendant                             oro   se,   and   resoectfullv                  moves
this         Honorable Court oursuant                 to    the           rule of Aooellate Proceaure 20.2. ana
the         Texas     Code     Of Criminal Procedure                  ~    26.04(M) for oroduction Of The Trial
Court            Reoorter's/Clerk's           Records       be        orovided in the Form of "Photo Cooies"
to         this     findiqent]        pro     se     defendant            at the address listed herein so that
he         can     adeauatelv     litiaate           and    file          a Writ of habeas Corous in the court
of         Criminal        Aooeals.    The         defendant          beseech      the Honorble court for "PHOTO
COPIES" of the trial court records in the above entitled and numbered cause(s).
for         the     oreoaration        of oreoarina his oost trial claims ana for a oost trial
~\lri t.     of Habeas Corous on his Illeaal sentence (s) • and in suooort of the fore-
aoina. defendant would show the court the followina:
                                                                 I.

      Your defendant, Robert Lee Smith, the undersiqned pro se litiqent, is curre-
ntlv servinq two050)vears sentences to run concurrent for the offenses of Aaq. -
sexual            assault     on a child in violation of Texas oenal code section                                ~         22.021.
Defendant was convicted November 17,2005. in The                                     184th.    District          Court          Of
Harris            Countv,     Texas    Before the Honorable JAN KROCKER, JUDGE PRESIDING, and
he was subseauentlv sentenced the same dav.
                                                             II.

The        defendant         reauest        that     this motion be construed Liberallv, as Reauired
in Haines v. Kerner. 92                     S.CT     594    L.        Ed 6052 (1971). Defendant is a Lavmen.
unskilled            and     inexoerienced           in    the        araftina of Writs. ana Formal Pleadina
of         errors, and therefore, is entitled to less strinaent standards that formal
pleading Drafted By Lawyers.


                                                                 (f}
The defendant moves this court on his "OWNBEHALF," and according to provisions
ofarticle           1,     sec. 19, and article 5, sec. 5, of The State Of Texas, article,
1,.05, sec. 4 of The Texas Code Of Criminal Procedure, and under the provisions
of     the        "DUE     PROCESS,"           and Eaual Protection Clause For the Fourteenth Amend
ment to the            u.s.    Constitution.

       Defendant           asserts         that     said rules of Aooellate Procedure Rule 20.04(M),
Rules        Aop.        Proc.,      Rule 20.2, reauires the State to orovide A free Statement
of     facts        to     an     appellate who appeals in "FORMA PAUPERIS. Rule 20.2, in the
case     of       an      indigent         defendant, provides for the statement of facts for the
Court        Of     Appeals. Furthermore, to imoose anv financial consideration between
an     indiaent           Prisoner         and     his        execise     of his rights to sue for Liberty is
to     deny       him      eaual      protection              of the Law. This motion is presented in good
faith        so     that       defendant          may obtain          Photo-state~copies   of all the Documents
and     trial          Records       to        Aid and assist him in the preparation of an Appeal to
a     hiqher        court       of    the        conviction           imposed by this court. The defendant is
entitled          to     rederss          by     habeas
                                   Corpus relief, that which is essential for
                                 '
his research, i.e., The trial Court RePorter's/Clerk's Records in'the above
cause.
                                                                 III.

Defendant is fully entitled to the trial court records souqht herein which are
essential in             the      preparation            of     his     Appeal   by habeas Corpus Application.
Therefore, defendant would show this court which records he knows to be essen-
tial to which he is entitled;
                         l)THE COURT REPORTER'S NOTES/TRANSCRIPTS/STATEMENT
                                                              OF FACTS:
                                          2). A COPY OF THE COMPLAINANT 1 S.
                                          3) A COPY OF THE INDICTMENT(S).
                                           4). A COPY OF THE WARRANT( S) •
                                      5) • A COPY OF THE JURY CHARGE ( S).
                                     6) ·. A COPY OF THE OOCKET SHEET( S).
                               7) • A COPY OF THE JUDGMENTS AND SENTENCE ( S).
               8) • A COPY OF THE TRANSCRIPTION OF TESTiftt)NY ON ARGUMENT( S) •
        10) • A COPY OF THE TRANSCRIPTION TESTIMONY ARGUMENTS ON PUNISHMENT.
                    11) A COPY OF THE TRANSCRIPTION OF INNOCENCE TESTIMONY.
        12). A COPY OF THE COMPLETE GUILT PHASE/CASE-IN-cHIEF 'IRANSCRIPTION.
         13) • COPIES OF ALL TRIAL MOTION FILED BY· STATE AND THE DEFENDANT.
        14). A COPY OF ALL UNSPECIFIED IXJCUMENTS NO!' NAMED HEREIN THAT ARE
                         RELEVANT TO THE ABOvE ENTITLED AND NUMBER CAUSE ( S)
                          (9) •• A COPY OF THE TRANSCRIPTION ON "VOIR DIRE".



     CON"T TO NEXT PAGE
                                                                 (;t)
Defendant asserts without the above documents number one throuah Fourteen in
the uooer oaraaraoh he would be unable to oreoare fairlv within the meanina of
a     Writ    of     habeas. Corous         oursuant        to article ll-07 of the V.A.C.C.P •. (A)
ann     in    the     hest     interst       of justice. A Writ in support of defendant's post
conviction          Application       and     that All of the requested documents listed above
will     be     utilized       in    preparation       of     this defendant's post trial Writ, and
not for the abuse of the proceedinas. The                      defendant    need    and request access
the     trial       court records to vindicate his Leaal Riahts to a collateral Attack
of his Illeaal conviction(s),
                                                       IV.

  Defendant avers that he is pauper without funds, orooertv or securties
in which to pay for the trial court records. The fee that the District Clerk
and     court       reporter    are        asking. Therefore, the documents and records should
be     afforded at No Cost to defendant in Order that he may construct an Appeal,
and in support of the foreaoina defendant cites the followina cases: ECKRIDGE-
v.    WASHINGTON, 357 U.S.214, 78 S. CT. 1067,(1959): SMITH V. BENNETT, 365 U.S.
477, 83 ·:s;CT.(l963}: ORAPER V. WASHING'1'0N, 372 U.S.487. S.CT.774(1963}:
GRIFFIN V. ILLINOIS. 3§1 U.S.12. 76 S.CT. 585(1956}: LONG V. DISTRICT COURT
OF IOWA, 385 U.S.192, 87 S.CT. 362(1966}: WILLIAMS V. OKLAHOMA, 395 U.S.458.
89 S.CT. 1818(1969}: GARDNER V. CALIFORNIA, 393 U.S.370, 89 S.CT.582(1969}:
NEVER V. CHliCAGO. 404 U.S. 189. 92 S.CT.30(197ll :Currv V.STATE. 488 S.W.2d.
606 Tex.cr.APP. (1973): U.S. V. DAVIDSON. 483 F.SUPP.1253(1977):EX PARTE-
MAYS, 510 S.W.2d 606 (TEX.CR.APP.1975): CARTUERIGHT V. STATE. 527 S.W.2d.
535(TEX.CR.APP.1975 )COUILLOR V. STATE. 577 S.W.2d. 118. 120-12HTEX.CR.APP.
1977): ABNOR V. STATE. 712 S.W.2d. 136(TEX.CR.APP.1986).

                                                       v.
     The Supreme       Court        held    that   States      are   required to established avenues
of Appellate review but it not fundamental that once established these avenues
must be kebt free from               unreasonable       distinctions       that    can onlv imoede ooen
and eoual access to the courts. Defendant contends that, If denied the reauested
ohotostat cooies of the trial court reporter's/Clerk's Records, he is therefore,
beina denied the riaht to Appeal. said denial would be a violation of the Fourt-
eenth Amendment to the              u.s.    Constitution. To imoose anv further financial con-
dition between an indiaent orisoner of the State and his execise of a State riaht
to sue for Libertv, is to denv that prisoner the "EQUAL PROTECTION OF THE LAW"
     In the case of LANE V. BRCIW. SUPRA THE COURT REAFFIRMED THE FUNDAMENTAL PRI-
NCIPLES OF GRIFFIN V. ILLINOIS SUPRA, BY STATING TO FOLLOWING:
                       A DESTI'l'l:n' DEFENDANT .MUST BE AFFORDED AS ADEQUATE


                       APPELLATE REVIEW AS DEFENDANT WHO MAY HAVE TO BUY

                                                    TRANSCRIPP

 IrtLane Supra, The court went on to observe that Smith v. Bennett,. 365 U.S.477
 83 S.CT. 768 reaffirmed these Principles when iustices sais in pertinent part:
 "That; these Princioles were Not"Limitted .to D1'rect Apn.o.=-ls" F                      ·
               ~~~-;~:::=-::-~~~-=~~~------~~==:~=:::~::r:o:m~c~r~~minal Con-
                                  ~--dner.• Sup-a
victions: It is further stated in UCU.'        ._, that a layman actina in his .:.:
own defense, or his own behalf, ·~needs the court records even more so that an
Attornev actina in his behalf would."
   In the case at bar, defendant asserts that his need of the records are
essential,       and        are reauired to present his case in the most favorable liaht,
and     he must procure said records to prove his errors pertaininq to the issues
in a 11.07 Writ Of Habeas Corpus to the trial                      court and the Court Of Appeals,
.as well as the higher court.

       Defendant       asserts       that . his     Constitutional     Guaranteed Rights have been
violated, but cannot be pursued by Post-Conviction Writ Of Habeas Corpus::;due to
.the    lack    of     his trial records and other essental documents. Defendant avers
that     if     he is denied the right to the trial records of his case in the above
styled        and number cause, that he would be denied the Right to Adequate Remedy
Of     Equal    Access        To Exhaustion The Issues Regarding his Illeqal Convictions,
and The Judae may not deny Defendant the                   trial     Court    Records   On Discretion
That A Fair Trial Was Held. Eskeridqe v. Washinqton, 78 S.CT. 1061(1961):
Smith V. Bennett, 365 U.S. 708 81 S.CT. 895. THE                      COURT    MADE CLEAR THAT THESE
PRINCIPLES WERE NOT TO BE LIMITED TO DIRECR APPEALS FROM CRIMINAL CONVICTIONS,
BUT EXTENDED           TO    STATE     POST-CONVICTION     PROCEEDINGS.       The   court also stated
in Smith v. Bennett, 81                S.CT.   at   898   that     the Fourteenth Amendment weiqhs
the     interest       of     Rich     and poor criminai in equal scale and its hand extends
as for to each. The court also· stated in Griffin v. People, 76 S.CT.at 590----'-
"THUS     TO , DENY         ADEQUATE     REVIEW TO THE POOR MEANS THAT MANY OF THEM MAY LOSS
THEIR LIFE LIBERTY AND OR PROPERTY BECAUSE OF UNJUST CONVICTION WHICH APPELLATE
COURTS WOULD SET
               '
                 ASIDE."
                  .•


        Defendant avers that·all said NOTES and Documents Of The Proceeding Occur-
rina before, during.and after the trial on the instant case are in the possess-
ion of the Court Reporter and The Court Clerk Of The 184th. Judicial District
CdlitETin Harris Countv,Texas The          Cost    Of    Said   Records   Must   be Assumed By
the State In This Regard Under The Jurisdiction, citing, Griffin Supra.

     WHEREFORE, PREMISES CONSIDERED, the defendant               respectfully    request   and
beseech this Honorable Court To Grant The Relief Sought herein, or in the alte-
rnative,    set   this   matter    on   the       Docket for an evidentiary hearinq on the
merits, or Grant any further Relief that this court deems proper and/or just.




                                                                                 U338999
                                                    Ellis Unit/1697 FM 980
                                                    Huntsville.Texas 77343

                                  AFFIDAVIT OF INDIGENCE


      I ROBERT LEE SMITH, Do      hereby    swear       and   certify   under the penality of
perjury    that   I am indigent and destitute and have no money, funds nor assets
or    financial ability to retain counsel are pay for court records in the above
cause are oav the cost of these leoal oroceedinos.




                                                         Robert Lee Smithil338999
                                                         pro se. Litiqent




                                              ·(_S)
                                        DECLARATION


I, ROBERT LEE    SMI~, TDCJ    NUMBER-1338999, being        presently   incarcerated   in
The O.B.Ellis Unit Of The Texas Department Of Criminal Justice rin:;G:!<Dnstiutional
Division in Walker Countv, Texas Declar Under Penaltv Of Periurv Pursuant to §
132.003 Texas Civil Practices and Remedies Code that the doreooino herein is true
and correct to the best of my knowleqe and belief.



EXECUTED ON THE 28, DAY OF NOVEMBER, 2007,




                                   CERTIFICATE OF MAILING

I, Robert Lee Smith, herebv certifv that a true correct copy of the foreooino
motion was      delivered to the district Court In Harris County, Texas By Placing
a   copy   of    same   in   the   Inmate Postal Service Mail    Box 1697 FM 980, Ellis
Unit/ Huntsvill, Walker County, Texas 77343 on the 28 day of November 2007.
                                 CAUSE NOS:i961276 & 966324


                                                IN THE !84th. DISTRICT COURT OF

ROBERT Lee Smith
                                                HARRIS COUNTY, TEXAS
vs.
THE State OF TEXAS

                                           ORDER




      The    above   motion to receive photo-copies of trial transcriPts and records
in     accordance with Rules Of Apoellate Procedure 26.04 and 20.2 free of charae
I

to defendant was presented/heard on the dav of
                                                      ------------------,20




GRANTED




DINIED
            ----------------------------------------


            SIGNED ON THIS            day of                           2007.
                             ----------     ----------~-----------




                                                   JUDG PRESIDING




                                          (/)
               .                  '                            )v   ! '
-':7.~-
\       -~-
               ,•            ,
                             .•,.•'
                                ....      EXHIBIT.:_B)     l   (J -··
    ....


           '
               .-  < '
                         -
                              '   !



                             ......
                                                           /'




                                       EX·HIBI'T-~)

/




                                         ( 8.-.LHliHX!!I
.,
         OOR.ROBERT SNll'l'H#1338999                          IN THE COURT OF APPEALS
         ELLIS 1 UNIT                                                       ,,
         1697 FlV! 980                                        fO.R '.rHE FIRsT .DISTRICT
         HUNTSVILLE,TX.77343
                                                              OF TEXAS




         Deara CARINNE McCULLOUGH "CLERK"


     '      .                 .
     ·Please find enclosed one (1) affidavit requesting the cost of
     affiant s clerk record s and transeipt.
                                       ..
                                                             Also, affiant request
     the cost of each potion of the" trial trainseipt i.e., .vior doir,
     Guilt/ Innocence phaser      e.nd the se':'ltencing phase.




                           THANK YOU IN ADVANCE FOR YOUR ASSISTANCE
                                                                    '
                                                                                             .".    ~



                           INTO TH! MATTER AT HAND.                                      .    ·::




                                            Si.ncilrely, ROBERT SMI:J:'H
                                                                               II             , -·          ,   ~   _ ..
                                                                                                        2
                                                     ·          f((!)--(JJ)vf~-t.?tlu fl-! 3 :;             f.(; 7; ;

                                                         Datea 2/ 25/008
                                                                                             ';    .'




                                             .   \~ \
                                                 ~   ;.
                                          ( 1)
.   :;:
                           Cause Numbersa9612?6 &.966'324

          Ex Pe.rtea

          ROBERT SMITH,                          In The Court Of Appeals For
           AFFIANT                               The First District Of   T~txas   ·
          THE STATE OF TIDCAS
          COURTY OF HARRIS




                             AFFIDAVIT

            BEFORE ME,    the undersigned authority,       on this day
          personally appeared Robert Smith,        Who, being by me duly
          sworn on his oath depose as fpllowse

             ·Comes now ROBERT SMITH, in a req'uest to obtain the :full
          cost of all clerk record and transcip in the aforesaid cause
          numbers and would swear and affirm thata
                                                      JT
          ( 1)   ON Auguet .J 200J 1. a felony criminal complaint was filed
          Ill,.., against affiantG'in cause numbers 961276 & 966J24a




                                         (1)
                                                                          ::;_.   . . ·. '   .   .   ~'                           .   ·~




                                   (2)                                                                    ··-   '·~'   \'   .~.




 -(2) •     On OCTOBER 24 200'3• ,                  affiant was ir&dicted for the
  off~nses     of aggravated sexual asse_ult of a child in                                   eaus~

numb~r~     961276 & 9663241
  (3). On ~OVEMBRR 15, 200S,                        Affiant's was convicted for the
offenses of e.ggravated sexual assault of a child in cause num-
btl!rs .9612Z6 & 966324,     and confined to a fifty (50) year sentence
in TDCJ 1
                                            t:~-.
  (4).      On NOVEMBER, 28 '2005.,{ a direct appeal was taken in
cause numbers 9612Z6 and 966)241.

 (5).      On 'JANUARY 11, 200?,            Affiant's direct appeal was denied
                                    1
in cause numbers 961276 and'·' 966J24r

(6).      on JANUARY 19, 2001, Af':f'ia~t·s
                                    . '     P.D.R. was file in.caus:~
                                                      ~   ),




 numbers 9612?6 and 966324,
 (                                      '

 (7). On JUNE 6, 200? Affiant's                            P.D.R. WAS Denied in caustt
  numbers 961276 and 966324,

.(8). On     o~r~BER   19, 2007.     Affiant filed a motion reques,ting
a copy of his el~+k' 8 record' a and trial transorlpt in cati·s~ ·
numbers 961276 and 966324•

  ((9). On NOVEMBER 1Z;200S, Affiant's requested a copy of his
clerk records and transetipt from the 184th. District Co:urt of'
Harris County. 'l'exasa

 ( 10). On NOVEMBER 28, 200?, Affiant aga,dn requestf!d information
as to the cost of his clerk's record's and trial transcri.pt· from
MRS .. CARINNE McCULLOUGH IN cause numbers 961276 and 966J24J

                                    (2)
                                     ( ))


       (11). On JANUARY. 22,2008, Af:f'ie.nt filed, two seperate
    pleadtng requesting information as to the cost of his clerk
    records and trial transcript in cause numbers 961276 and 966J24J
         ~y
       ( t!). Affiant has declared that he is indigent and :-the
                                                    .                  ~'·-
                                                                       "·
    hA request from thie court thfll cost of his clerk's           reco·rd~;

    and transcripts in cause numbers 961276 and 966J24t               and ·'
    that this court gi vee him a breakdown of each poti()n            ot .
    the clerk's record's as well as tne court prceeding in his
    transcript of cause numbers 961276 and            966324~




                                            AFFIANT


      BEFORE ME, the undersigned author~ ty on this the             f3 c;-   DAY of.;.
    F.eJ        ,   2008, and personally       ~ppeared
                                               ':!'
                                                          Rob..,rt Smith, ' and
    sworfll and affirmed the truth of the contents recited hereinabOve •.
    He stated, under oath, that his testimony was true and correct·
    and given fo.r·   th~   purposed considerati.ons recited.




                                    Notary Public In m\d For ·
                                   .The State Of ~EXAS


                                       MY COMMISSION EXPIJmSa




0                                    .(J)
          EXHIBIT-C)




EX·HIBIT-~;1
. ··::-            ~t




          EXHIBIT-:C)
                                                                                                           ' c: ll
                                          THERESA CHANG
                                         HARRIS COUNTY DIST~ICT CLERK




                                                        February 29, 2008


MR. ROBERT SMITH
TDCJ #1338999
ELLIS UNIT
1697 FM 980
HUNTSVILLE, TX 77343


Re:    Your Letter Received: 02-18-08
       Reference Naine: ROBERT SMITH·


Dear MR. SMITH:

The document(s) in the cause number(s) you requested and the number of pages are listed as follows:
Cause No                      Document                               No. of Pages




961276,966324                 COMPLAINTS                                       2
                              INDICTMENT                                       2
                              JURY CHARGES                                     14
                              DOCKET SHEETS                                    17
                              JUDGMENTS                                        6
                              PRETRIAL MOTIONS                                 16
                              STATEMENT OF FACTS                               144

THESE COSTS ARE SENT TO YOU PER ORDER OF JUDGE KROCKER

The fee for a certified or uncertified copy is $1.00 per page. If you wish to purchase a copy of any
document(s) listed, please request the document(s) by name and cause number.

We accept ONLY cashier's checks; money orders, inmate trust fund checks, or Texas law firm
checks payable to Theresa Chang, District Clerk. To expedite your request, please return this letter and
a self-addressed stamped envelope along with your payment to the District Clerk, Attention: Criminal
Correspondence, 1201 Franklin Avenue, 3rct Floor, Room 3138, Houston, TX 77002.




                         20 I CAROLINE    • PO Box 4651 • HOUSTON, TEXAS 77210-4651
                THERESA CHANG
               HARRIS COUNTY DISTRICT CLERK
                                                  ·Sincerely,




                                 By.               •
                                                          ··
                                Theresa Chang, District Clerk

                                7:tMr~
                                       T. Moore, Deputy District Clerk




201 CAROLINE    •   PO Box 4651 • HOUSTON, TEXAS 77210-4651
.,

     ~·-.
            EXHIBIT-D)




                  I -·
                  I




            EXHIBIT-D)
                                                    .   )•



                            ROBERT LEE SMITH#l338999
                           O.B.ELLIS UNIT/1697 FM 980
                             Huntsville,TEXAS 77343




MS LOREN JACKSON
HARRIS COUNTY DISTRICT CLERK,
HOUSTON,TEXAS 77002                                                     NOVEMBER, 21/009
                                                                        RE:CAUSE:i01-05-01095-CR &
                                                                        01-05-01096-CR:


                  MOTION TO PRODUCE TRIAL TRANSCRIPTS AND
                           AUDIO SOUND RECORDING

Now Comes, ROBERT LEE SMITHi1338999,petitioner pro se respectfully

moves     this    court     pursuant      to Rulle 13.1 and 13.2 of The Texas
Rules     Of Appellate Procedures for Orderinq Transcripts and Audio
Sound     Tape    Recording.        Petitioner               is entitled to a copy of his
Transcripts       and     Audio     Sound Tape Recording in Order to prepare
his     Post-Conviction          Habeas   Corpus              Pursuant           to     Article 11.07
Code     Of   Criminal      Procedures      and              28     §    u.s.    2254. The Court's
Attention is directed to State v. Creel, 895                               S.W~2d       899, 900(Tex.
App. Waco 1995, Oriq. Pro.) Which                  states                the     ~ourt     Reporter's
Duties Under this         R~le    are Not Met Simply by filing the Reporter's
record with apprpriate court. The reporter's                                   record     filed   must
be     complete    and     accurate.      It follow's petitioner submits that
Texas Rule Of Appellate Procedures Rule 13.1 and 13.2 in                                     pertammq~

and provides the followinq;

        (A) ATTEND COURT· SESSION'S            AND                MAKE     A FULL RECORD OF THE
PROCEEDING UNLESS EXCUSED BY AGREEMENT OF PARTIES.
T.R.A.P.l3 COURT REPORTER'S AND COURT RECORD: 13.1 ADDITIONAL
DUTIES OF COURT REPORTER'S AND RECORDS.                             ADDITIONAL DUTIES OF COURT
REPORTER THE OFFICIAL COURT RECORDER MUST ALSO:


(B) ENSURE THAT THE RECORDING SYSTEM FUNCTION'S PROPERLY THROUGHOUT
THE    PROCE~DING'S      AND THAT A COMPLETE CLEAR AND TRANSCRIBALE RECORDING
IN MADE.




                                          (1 ) .
~   (C) After the             recordino             end's         file with the clerk the orioinal

    (D)     HAVE     THE          ORIGINAL          RECORDING            STORED   TO ENSURE THAT IT IS
    PRSERVED AND ACCESSIBLE AND:

    (E)     ENSURE THAT NO ONE GAIN'S ACCESS TO THE ORIGINAL RECORDING'S
    WITHOUT THE COURT WRITTEN ORDERS.

         The above        and foregoing language is clear and it's requirement
    are mandatory. ThiA prespective has also been                                     recoonized         by
    the     United        States             Supreme        Court in that State that a criminal
    defendant        has          a     right        to     accurate        record on appeal. Which a
    complete        Transcripts                of     the        preceeding at trial. See Hardy v.
    United State 375 U.S. 277 84 S.CT. 424 111. Ed.2d 33(1964).
           In    view        of        the     foregoing              and above petitioner heretofore
    request's        this             court     to produce the Audio Tape Recording's and
    Transcripts           pertinent             to petitoner's sentence in which was held

    "SEPTEMBER,l7,2005,' see HANDSON V. STATE, 956 F.2d 245(11 CIR.(l992).
    In Re Jose A Coronado No;04-98-00596-CR.states an indiqent criminal
    defendant        is       entitle           as a matter of equal protection or of Due
    Process to obtain a free statement of facts and transcrips in order
    to     assist       in        perpration of a petition of habeas corpus"ABSENT"
    a     showing       that           the     Writ of Habeas "ACTION" is not" Frivolous"
    and     there       is        a "SPECIFIC" need for the trial records which are
    sought.        ESCOBAR             V. STATE, 880 S.W.2d 782, 873(TEX. APP.(HOUSTON
    lST.Dist.l993).

    Applicant/Petitioner claims                            he     is     ACTUAL INNOCENT, and without
    The         Fundamental             Miscarriage              Of     Justice   Applicant/Petitioner
    would       never        been        convicted              and     or illegally sentenced, so he
    need's        these       record's.             Abuse         of     discretion and prosecutorial
    Misconduct          by        volume.           Page        and lines, to establish that there
    are unadjudicated meritoious allegations of United States Constit-
    utional Rights Violations.
                              WHEREFORE, premises considered Appellant/Petitioner
    prays that this' court GRANT this motion. The court Reporter's to
    produce the entire volumes of Audio Sound Tape                                  Re~ordinq   Of the    ~3

    transcripts of Appellant/Petitioner Trial and Sentencinq proceedinq
    and exhibits.




                                                            (2) .
~
       ,,,.
              ,;;.:~
;   ... ':· ',\:~~.
              Jri'•

              Jt                                                                                 -~ ·''




                             AFFIDAVIT/UNSWORN DECLARATION CERTIFICATE OF SERVICE




                       State Of Texas, County Of Walker County, I Robert Lee Smith, TDCJI-
                       1338999, du1tv sworn depose attest and.sav                    unde~   oena1tv or oreiurv
                       that the foregoing and following statement are to the best of mv
                       knowledqe pursuant 28 § u.s.c. 1746. I have serve. file this inst-
                       rument bv   ol~cihci     ~am~   within   ~.o.c:J~ID#.         Irtternal mailina svstem
                       an officiallv ~eoositorv of U.S.P.S. In a cost oaid orooerlv addr-
                       e,~s wraooer to infra, and herebv veri tv under oen,al tv of ore iurv
                       that the foreaoina is true and correct to the best of mv knowledae.


                            EXCUTED THIS DAY 1 December. 21 1009 :··-· -

                                                                                                          ;:




                                                                                Robert
                                                                               -Ellis Unit/1697 FM 980
                                                                                Huntsville,Texas 77343




                                    ,I    •''




                                                                (.~   )   ..
r;
     EXHIBIT-E)




                  \,_




     EXHIBIT-E)

                        /
··~·
       ROBERT LEE SMITHil338999
       ElliS UNIT
       1697 FM 980
       Huntsville.Texas 77343                              JUNE 15.2010:



                                                                (
                                                RE:TRIAL COURT N0Si961276 & 966324)
                                       APPEAL COURT NOS·: 01-05-01095    &   01-05-01096-
                                       CR.)).

            DEAR CLERK,
       Enclosed, please find mv motion, for the l84th.Judicial District
       Court to Produce trial court transcriPt for on a Temporarv Loan 1
       Basis. Under both Texas & Federal Law. Petitioner has The Riaht t
       to Pursue Post-conviction habeas Relief from the iudaement and
       sentenced imposed on him.



             Please Clerk of the court. Please file this Motion with the
       Judae of this court for inspection olease.



                       r.   also reauest that vou-notifv                court's,rulina
       on mv motion.




                                           (l).
.f   ',0



                                   CAUSE NOS:#961276           ~   966324




                                                                   IN THE 184th.JUDICIAL DISTRLCT

                                                                   COURT OF HARRIS COUNTY, TEXAS
           THE STATE OF TEXAS
           vs.
           ROBERT LEE SMITH



                              MOTION TO OBTAIN TRANSCRIPTS RECORD



               To THE HONORABLE JUDGE OF SAID COURT:

           COMES NOW, Robert Lee Smith, defendant 1n the                      above      entitled
           ~nd     numbered    ~aused,    and   move~this       Court for an Order to Grant
           Records of Transcriptss from hearing.
           )                                       __!_••
               Defendant was convicted on 11/17/05, for the offense of aggrava-
           ted sexual assault.
                                                   II.

               Defendant was confined at Harris Countv Jail, 1200 Baker Street.
           Houston.Texas      77002~and     is indiaent. Sa. such defendant is unable
           to oav anv and all costs of transcrios records.


                     WHEREFORE. DEFENDANT PRAYS, that this court Grant this motion
           and have all said transcriots records forward to the defendant.

                        RESPECTFULLY SUBMITTED, THIS 17th DAY OF DECEMBER.



                                                             K~~
                                                            RJbert Lee Smith

                                     CERTIFICATE OF SERVICE

           I Robert Lee Smith, beinq presently incarcerated in Harris Countv,
           Texas    declare under oenaltv of puriurv that the foreaoina is true and correct.
           EXECUTED ON DECEMBER 17, 2005:
                                            1     ORDER
           on this,the 14 dat of December 2005, came to be heard defendant's motion and it
           should be.
                                                               GRANTED
                                                               DENIED
                                                                         -------
                                                   (2)
                                                                        --------------       )
                             SO ORDERED




                             JUDGE   PRESIDING




GRANTED
          ----------------
DENIED
     -----------------




                               (3).
     .



.. .!;
         '           ~




             ...........
                               '
                                .



                           , .........
                                         ..
                                         I



                                         ~
                                                                    )Afi'
                                                                  .l~,
                                                                   /' . .
                                                EXHIBIT-F)




                                              EX·HIBIT.\})




                                              . EXHIBIT-F)
                                                             '\
                                                                                           t;J;f)tr [,1ft(
                                     Cause No;i961276 & 966324



· Robert Le Smith                                              In The 184th District Court §f
                pro se,
vs.                                                           Harris County, Texas
      The State Of Texas

                   MOTION TO REVIEW THE TRIAL RECORDS ON TEMPORARY BASIS:

      Dear Ms Jackson,

greeting,      I     pray   all     is    well with you and yours, Ms Jackson this motion I

am filing in The 184th. District Court please, file                  said   motion   and   bring

it to the attention of the Honorable Judge of said court.

                                               ,-
       Your   Assistance      and        consideration   and cooperation with regards to this

matter will be most sincerely appreciated. Thank you in advance.




                       I look forward to receiveing your reply in the near furture;




                                                     Res~~
              9/19/011                                   ~prose
·'
                                              Cause No;#961276 & 966324



     Robert Lee Smith
                                                                 In The 184th District Court· Of
     Vs.                                                         Harris County, Texas
     The State Of Texas

                   MOTION TO REVIEW THE TRIAL RECORDS. ON TEMPORARY LOAN BASIS:


     To The Honorable Judge Of Said Court;

     comes's now, Robert Lee Smith, Movant, pro se in the above styled and numbered

     cause, and      would        respectfully       move     this    honorable court to provide Movant

     with    a     copy     of    the trial records herein referredto as the the"Records" in

     trial       cause ·numbers          961276     & 966324, on a temporary loan basis, in support

     of this Honorable Court is the following;

                                                            I.
                                                     JURISDICTION


     This Honorable court has original and continuing jurisdiction over the parties

     and subject matter raised within this faith motion.

                                                            II.
                                                  OPEN RECORDS     ~T



     Movant's request is made, in part, pursuant to those provisions enacted through

     legislation under The Texas Public Information Acts, Codified Under Government

     Code§ 552.000 Ct.Seg. V.T.C.A.,

                                                         III.
                                                  RECORDS FOR REVIEW


     [A] Movant       have       in     the   furture   have       tried to prepare and submit a pro-se

     application          for    Writ    Of    Habeas   Corpus, Pursuant to Texas Code Of Criminal

     Procedures Annoate Article 11.07.




                                                            {1).

                                                                                                   \
[B] within the body of the application for Writ Of Habeas Corpus Movant expects

to raise the following constitutional Error's but not limited to these alone;

1). Ineffective Assistance Of Counsel;

2). Insufficiency Of Evidence;

3 ) . That •.• ect.

[c) as a matter of law Movant would state further that undser the proof                       Stand~

ard of     Tex.code           crim.    pro.    Ann.   Art.ll.07       and exparte Maldonado 688 S.W.

2d.     114     (Tex.     cr.        app. 1985) The applicant must state facts which, if true

would     entitle        the     applicant      to    relief. ID merely stating Legal Conclusion

is not enough see Exparte Hernandez 705 S.W.2d 700 (Tex.cr.app.l996).

          Futher        more     an    applicant,      ,to be entitled to relief, must plead and

prove that the complained of error did infact, contribute to his conviction and
                 /

punishment. Exparte Barber 879 S.W.2d 889(Tex.cr.app.l994) Movant would respect-

fully contend that, there                 is   no way for him to be able to raise and or/plead

factual       errors      on     an    application      for   Writ Of Habeas corpus without first

being able to both review the "CLERK" RECORDS AND THE "REPORTERS RECORDS"within

this cause;

[D] Movant would futthermore point out as a matter of law that in the event he

was     thus,        forced     to    raise    claims on his state writ, which were the denied

thereafter, both by the Honorable Court and then the Court Of Criminal Appeals

The overall harm from such a denied would not just stop here.

This harm would follow Movant into the Federal Courts as well.

Under     the        Antiterrorsim       and    effective     Death     Penalty Act Of 1996, [AEDPA]

habeas        relief     under        title 28-USCA §2254?, will not be granted for any claim

adudicated on the merits in state courts unless the decision was (l)contrary to




                                                       (2)
or involved an unreasonable application of "FEDERAL LAW" CLARLY established

by The Supreme Court, or (2)" BASED ON AN UNREASONABLE DETERMINATION OF FACTS,"
see 28-USCA 2254 (d)(l) & (2).

Movant would in same likeness, be unable to meet these required standards with-

out first being able to review the records, since Movant is indigent (see attached

declaration in support, tThis                        failure        or    denial    of the right to raise such

claims on habeas corpus, because the Honorable court would not allow Movant a

free     viewing         of      the    records would both be unconstitutional and against the

Well Established holding under The United States Court Case Law.

                                                              IV.
                         AS A MATTER OF THE SUPREME COURT LAWS OF THE LAND


[a] Movant would contend that the United States Supreme Court has consistently

held under certain circumstances, that trial records should be made availiable

to     indigent          prisoners        without prepayment of the cost and fee's proving such

records        and       that     prisoners          access    to        the courts cannot be condition upon

the amount of money he/or she may have, (see M.L.B.V.S.L.J., 117 S.CT. 555 (1996),

Griffin v. Illonis 351 US 12,-76                       s. CT. 35 (1956,
The Plurality in Griffin reconized "The Importance Of Habeas Review To Correct

Adjudication of guilt or innocence Id. at 18,76                              s.    Ct. St 590 ..

[T]O deny adequate review                     to     the   poor.         "The Plurality Observed" means that

many     of       them     may       loose     their life, liberty or property, because of unjust

conviction           which       habeas       courts would set aside. Id. at 19,-76 S.CT. 590 The

rational has been applied various other forms of review.


[C]     as    a    matter        of facts Movant would point out that it is common practice

on     the    prison          Unit     that        prisiners receive records from the courts as loan

basis        to the "Warden Of The Unit" The Warden Allow offenders to review said re

cords within the Unit Library, Under the constance supervision of its staff off-

icers.



                                                              (3)
When the pre-established viewing time limitations by the Honorable court has
been exhausted, The Warden then mails the Records back to the court, at the
offenders expense.

                                                    v.
                                                    PLEA

  Movant spectfically request              this     Honorable    court   to   allow    him in same,
as the above said section IV. Subsection(C) and would plea that he only wishes
to review the      records,       not     retain     a     free copy of said records on the Unit
that   he   is    signed    to.     If     the court is in agreement of this request, then
Movant would specifically request the court for the following;

[A] that the above mentioned trial appeallate records in this cause Number
961276 & 966324, including(l) The clerks records and/or transcripts, and
(2) The reporteds records and/or testimonal minutes.

(B) that    the    court . Order the District Clerk Of Harris County, Texas to Mail
the complete Records to Senor Warden Of The Ellis Unit, 1697 FM 980 Huntsville,
Texas 77343                       , to                   confirm receipt by calling the Wardens
Secretary, at________________________;

[C] Movant specifically           request     Ninety(90)days       to Review the Records in the
Law Library, on the Ellis Unit Under Supervision Of The Warden Designee .•

                                                    VI
                                             CONCLUSION

   Movant is      making    this        reasonable and just request in good faith, to deny
this   request after having made this good faith attempt, as an indigent prison-
er of this state, would be for the court to deny Movants constitutional vested
rights to equal protection and due process of the law under both                      u~s.   constitu-
tion Amendment(S) and XIV: and Texas Constitutions Article 1 & 10, § § 19. let
this Honorable Court make the fair and just decision to uphold Movants constit-
utionally protected rights by granting this motion.
                                                   VII.
                                                   PRAYER

Wherefore Premises considered, Movant would                    Respectfully    pray thatt this
motion to review trial records on temporary                                    ;nos#961276 & 966324.




                 9/19/011



                                                    (4).
