                  COURT OF CRIMINAL APPEALS OF TEXAS

                  P.O.~QX 12308,CAPITOL; STATION
                       ~                    .



                  AUSTIN,TEXAS 78711

                  IN THE SOVERELGNITY OF. THE COURT OF JUSTICE

                                                                   *******
                                                                                                        RECE~VED ~f~
                  THE TEXAS COVRT OF                CR~MINAL      APPEALS .. ---¥                     COURT 0~ CRIMINAl APPEALS
                  IN RE THE              STRAWMAN JAMES REBECTOR                     iSS P
                                                                                                            APR 07 2015
                                         MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS
                                                                                                        ~b®l Acosta, Clerk
                  TO THE HONORABLE JUSTJCES OF THE tOURT OF CRIMINAL APPEALS ENBANC:

                                                                   1.
                                          \

    .             The .Re1ator
                       ~ .
                               seeks
                                 '   leave of This Honorable Cour,t o.f Justice To file Writ
                                                                                          ''··-
                  of Mandamus,and have such Mandamus Issue This Court of Justice's Jur1idict~on
        ..   ~·


                  has been invoked by The                       Proper filing of The Article 11.0~,Writ of Habeas
                                                                                     ,.
                  Corpus,with a Motion: To Vacate And Set Aside Entry Of Void Juagment properly

             ;attached ~n The 144th 5udicial District Court of Bexar County,and                                     ~nder The
                                .
                              "'· .:..


                  Aut~oriti of Metropolitain ~iansit Aut~ority v.Jackson 2L2 S.W:3d 797(Tex ..
                  ·App-Hou~ton            ( lstDIST.) 2006). MTAv .Jackson is controlling in t:h'i;ii rna tterbeca~se
                                                                                                                             -· ..   ~



                                                                                                                     ,,· r
                  the Judgment of conviction and. sentence is Yoid under ·Te'xas Law:.

                  The Writ of Habeas Corpus form serv_es as the VEHICLE by which                               the Motfon ·To

                  Vacate and set Aside Entry of Void Judgment receives Proper Cognizance                                                 b~fore


                  The Trial Court,which Retains Its Plenary Power Over                            It~· Vo~d   Judgment(s).

\                 Id. MTA v.Jackson 212 S.W.3d 797. For This reason the Habeas Corpus Proceeding
                                                           .,
                  is essentially transformed into a proceeding where1ri the Trial Cd'urt exercises !Jf!J

                  exclusive PLENARY POWER TO VACATE THE ENTRY OF ITS:VOID JUDGMENT.

                  An impromptu or arbitrary refusal to address the issue(s) as set forth is not

                  a discretionary matter,but a                      miriist~r~ duty as so established and settled
                                              \'
                  under Texas             Law.~It    is   w~ll     settled that a Trial       ~ourt   has not only Power,

                  but a Duty To Vacate Entry of a Void Judgment anytime,either during term,or

                  after term,with or without motion;(And)Trial Court has no discretion to refuse

                  to set aside Void Judgment,but has a duty to do so at anytime that                                ~uchmatter


                  is brought to its· attention." Id Metropolitain Transit Authority v.Jackson
                                                                             ,
                  212 S.W.3d 797                                             1·
                                                      .•.
This Honorable Court of Justice has cons1stently
                                        ·        held. that Void Judgments

may always be collaterally attacked at anytime, Hoang v. State,872 S.W.2d

694~698~tex.Crim.App.l993;     ExParte Spaulding 687 S.W.2d at 745and for the

reason of a Void Judgment being made known To the Trial Court,Relator seeks

Leave to   f~le   Writ of Mandamus,and for Mandamus To Issue in this Matter due

To Trial Courts failure and refusal to respond.

EXECUTED ON THIS 3rd DAY OF APRIL 2015.

                                      Sincerely




                                      2.
        COUR":f OF CRIMINAL APPEALS OF TEXAS

        P.o:BOX          12308 1 CAPI~OL                                      STATION

        AUSTIN 1TEXAS 78711
                                                                                                                                    RECElVEDU~
                                                                             . ''r-.:
                                                                                                                                 tOURT OF CBlMI~~.tAPPEALS
                                                                                                                                 ·~~·-'

        IN THE SOVEREIGNITY OF-THE COURT OF JUSTICE                                                                                       1ft (j j                    l!}h
                                                                                            *******             J.
                                                                                                                                     A~ Acosta, Clerk
        THE     TEXAS COl]RT OF.>t.RIMINAL APPEALS

        IN RE THE                  STRAWMAN JAMES REBECTOR
                                                                                                               relj'       tWI
                  ·'   .·.              MOTION~~OR                                ISSUANCE OF WRIT OF MANDAMUS
                                                                                                                                             ~;
        The   Re~~tor                    was convicted in the l44th Judicial District Cburt of Bexar County

        Puri~~nt Texas He~l~h and Safety Code §481.112. prior to Trja~~the TrialCourt
                                                                                                                                            ·I~      •~
                                                                                                                                          .::·;._.,, ..
                                                                                                                                                              J   ;

                                                                                                                                                          _



        Judge ·ordered A _Psychiatric evaluation to determine the Inc<:)mpetency of the

        Relat6r1Pursuant Texas Code of Criminal Procedure,Article.46.02§2(a) (Prior

        To Its REPEAL in2004). As the Law applies to the FACTS                                                                        ·of thiS:. ·case 1 The Trial .

        Cou,rtPos'sessed a· ministerial duty to co.pduc;t, the ~ncompen~ency_ hearingLP_ ri~r
                                                                                             ,   'fht /(ec~fl/l t5 c(~i/t)ld trf ~AJiA/t!.0/1-1/)e,/-efi/C~ n:4n~/'
        to the         commen~ement                                 of the tria1. The Tr1al Court's                          fa1lur~                to substant1ally         .

        c?·mply with Article 46. 02 § 2 (a) Whereby the ministerial duty is duly. noted by

        the mand~tory language-SHALL:Government Code § 3ll.bl6(2)- renders all Ytoceedin

        gs thereafter unequivoc'ally Void1rather than merely Voidable. 'For the foregoing

        Proprosition1The Relafor contends that the final Judgment and it~ .. ensuing
                                                                    ..
        mandate sets forth that the Proceedings and ORDERS bF THE COURT COMPLY with
                                                                                                                             0
        REGULARITY and satisfy ·The                                                        Presump~ion          Of' Correctness. As such there is an

        inferenc~             that the trial Court" rendered Judgment against a incompetent

        indi v idual1 when .such de'termina t ion had not been made. Therefore 1 because the

        Trial Court failed t6.substantially comply with Article 46.02§2(a),Tex.C.Crim.
                                                                   ' -:.~.


        proc.     Aft~r                  ordering the requisite Psychiatric evaluation1the final Judgment

        is effected and Void. As expressed1and Verified in Southern Insurance Company

        v.Brewster 249,S.W.3d 6,(Tex.App.-Houston[lst.DIST.] 200e7)
                        -.,                                                                               ()




        "Wh.en a Trial Court renders judgment without Compliance with Section 410.258(a)
.fo_CAwtclh e.. ~ttat~-terA 16 ct {e_·!jal 1111.{./ll-kj~ _
                                                                                                                                                                                 1
                                                                                                      '
        the Trial Court retains.                                                        its~€lenary       Power to set it aside.'' The same principle

        is applic;4f,le in this matter1and must be stated as follows:"When a Trial Court

        renders judgment without Compliance with Article 46.02§2(a) the judgment is

        a legal           null~~y."                                                               1.

                              '   ..   ··--·~-   _·___..:~,   ·-
'    ..                                                            2.
    'Th~ Relator has Presented-t~~ Tri~l Cburt with the foregoing
                   ..  ;  .. ;lf.·il1· .
                                  ':':{,!!,"'
                                                                  issue of Void
    Judgment made          c~niza'q~:e,                   in The motion TSS:,vacate and Set Aside Entry of Void
                                                                         :t'·
    judgment,by The VEHICL~ Pre~9ribed as Writ of Habeas Corpus-Article 11 1 07.
    The t r i a 1 court has fa i l.e d , or r e fused to respond in any manner even
                                  .......
                                     • ·.• i   •!;.~                                after being
    presented with two
                                                                                          1tle #rrufkal ·
                                 notf6~s requesting Proc~§~9,8~0~-s~~ethed copy of the letter
                                                                                r•   '•




    to the trial Court
                  "'~'/{ ' '    -'· ,-:~r.·~· ce~tl/ies
                             clerk                '     the Relator's Du.e Diligence to obtain a ruling
                                               'I''''


    from the Tria~.Court. i.r.b,'i~~ timely fashion.The Trial Court has abused it~ discretion

    _in failingto consider and rule the Properly cognizable motion. In Re E@                                 3'7 Eli

    Hearn 137 S.W.3d)681 (Tex.App.San-Antonio 2004) it was held that: ;'When a Motion

    is    prf~i{¥   filed and Pending before a Trial Court, The act of giving consideration

    to,.and ruling upon that motion is a ~inisterial,and Mandamus may issue to compel

    the Trial judg~ ·to act                            rd at 683-684,(Citing Safety-Kleen Corp v.Cearcia 945 ·

    S.W.2d 268,269 (Tex.App.-San Antonio 1997 original Proceeding).

    I'he Relator has made the requisite showing of bringing the matter to the Tria.l
    Court and the Trial Court's failure to respond or rule Barnes v.State 832 S.W.2d

    424,426-427 (Tex.App.-Houston[lst DIST.]l992,original proceeding).

                                                                  3.

    For the reasons set forth above,The Relator requests this Honorable Court of Justic

    e to Issue Mandamus Compelling the Trial Court to rule in accordance with

Met'ropolitain . .f'ransit Auth'ority v.Jackson 212 S.W.3d,797 specifically inlight

of the Trial 'court's Plenary Power and to take cognizance of The Void Judgment

Presented thereto.

EXECUTED ON THIS 3RD DAY OF APRIL 2015

                                                                   Respectfully requesting,

                                                                 ~~~f!U933
                                                                        ~TOR#896933
                                                                   ALFRED D.HUGHES UNIT,4Dll-04B
                                                                   ROUTE 2,BOX 4400
                                                                   GATESVILLE,TEXAS 76597
                                                                   (254)865-6663,UNIT WARDEN
    • •   •        '   ,., •    '   ,; "!/ ~-~ ,j\<J.",•       ~\. •
                                                                           .   .....

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                  !/{171-C-ll tdJ OJ/ v




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