                                                                             WR-31,454-04
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 6/29/2015 2:07:05 PM
                                                                Accepted 6/29/2015 5:30:36 PM

                   Nos. WR-31,454-03 & WR-31,454-04
                                                                                ABEL ACOSTA
                                                                                        CLERK
                        ______________________________

                  IN THE COURT OF CRIMINAL APPEALS
                                 OF TEXAS
                       ______________________________

         EX PARTE RODNEY ELNESTO SMILEY, Applicant.
                 ______________________________
             On Application for a Writ of Habeas Corpus

                   Cause No. C-213-010293-1011284-B
             In the 213th District Court from Tarrant County

                           Cause No. W94-02594-U(A)
                 In the 291st District Court from Dallas County
                         ______________________________

  BRIEF FOR THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE
                    ______________________________
KEN PAXTON                                    *JOSEPH P. CORCORAN
Attorney General of Texas                    Assistant Attorney General
                                                   Supervising Attorney
CHARLES E. ROY                                  for Non-Capital Appeals
First Assistant Attorney General              Criminal Appeals Division
                                                 State Bar No. 00793549
ADRIENNE McFARLAND               Joseph.Corcoran@TexasAttorneyGeneral.gov
Deputy Attorney General
for Criminal Justice                           *Lead Appellate Counsel
                                        P. O. Box 12548, Capitol Station
EDWARD L. MARSHALL                                  Austin, Texas 78711
Chief, Criminal Appeals Division              Telephone: (512) 936-1400
                                               Facsimile: (512) 936-1280
                     _____________________________
                        ATTORNEYS FOR THE
           TEXAS DEPARTMENT OF CRIMINAL JUSTICE



 June 29, 2015
              IDENTITY OF PARTIES AND COUNSEL

     To assist this Honorable Court in determining disqualification and

recusal, the Texas Department of Criminal Justice certifies the following

is a complete list of the parties and their attorneys in accordance with

Texas Rule of Appellate Procedure 38.1(a).

1.   Applicant
     RODNEY ELNESTO SMILEY
     TDCJ-CID No. 693698

2.   Counsel for Applicant
     KENNETH NASH
     State Counsel for Offenders
     P.O. Box 4005
     Hunstville, Texas 77342

3.   Counsel for the State
     ANDREA JACOBS
     Assistant Criminal District Attorney
     401 West Belknap
     Fort Worth, Texas 76196-0201

4.   Counsel for the Texas Department of Criminal Justice
     JOSEPH P. CORCORAN
     Assistant Attorney General
     Texas Bar Number 00793549
     P. O. Box 12548, Capitol Station
     Austin, Texas 78711

5.   Trial Court Judge
     JUDGE LOUIS STURNS
     (State habeas proceeding)

                                   ii
                                 TABLE OF CONTENTS
                                                                                              Page
IDENTITY OF PARTIES AND COUNSEL ............................................. ii

TABLE OF CONTENTS .........................................................................iii

INDEX OF AUTHORITIES ..................................................................... v

STATEMENT OF THE CASE ................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................. 5

STATEMENT OF THE ISSUES .............................................................. 5

SUMMARY OF THE ARGUMENTS ....................................................... 7

ARGUMENT .......................................................................................... 11

I.     Since Applicant Was Thrice Reviewed and Denied Release to
       DMS for His DMS-Eligible Offense, There Is Nothing to
       Remediate; the Issue is Moot ......................................................... 11

II.    In the Alternative, Because the Initial DMS Vote Was Timely,
       Applicant’s Rights Could Not Have Been Violated ....................... 13

       A.      Both TDCJ and the Board have independent legal
               authority to interpret Texas statutes related to
               their   core,   legislatively-created                functions,
               including the interpretation of laws to determine
               how to calculate sentences and to institute parole
               review procedures ................................................................. 13




                                                 iii
                        TABLE OF CONTENTS, Continued

       B.     Applicant’s assumption that the initial DMS vote
              was untimely, exposes an interpretative tension
              within the statutory provisions creating the DMS
              procedure, and creates a cascade of potential
              absurdities. ............................................................................ 15

       C.     Applicant’s legal rights could not have been
              violated with respect to his DMS sentence, because
              the Legislature limited the force and effect of good-
              time to only his conviction for theft—at least while
              he was serving his controlling, concurrent
              sentence for theft................................................................... 28

III.   Because Applicant’s Theft Offense Ceased to Be the
       Controlling Sentence As of the Moment He Became
       Presumptively Eligible for MS Release Thereto, Applicant’s
       Rights Could Not Have Been Violated .......................................... 35

PRAYER FOR RELIEF .......................................................................... 40

CERTIFICATE OF SERVICE ................................................................ 42

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4 ............................................................ 43




                                                  iv
                            INDEX OF AUTHORITIES

Cases

Ex parte Bohannan, 350 S.W.3d 116 (Tex. Crim. App. 2011) ................ 12

Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988) .................... 24

Ex parte Cowan, 171 S.W.3d 890 (Tex. Crim. App. 2005)...................... 31

Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008) ............. 16, 34

Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000) ......................... 1

Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003) ................... 19, 25

Ex parte Keller, 173 S.W.3d 492 (Tex. Crim. App. 2005)................. 14, 15

Ex parte Mabry, 137 S.W.3d 58 (Tex. Crim. App. 2004) .................... 2, 36

Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004) .............. passim

Ex parte Ruthart, 980 S.W.2d 469 (Tex. Crim. App. 1998)........ 17, 28, 33

Ex parte Schroeter, 958 S.W.2d 811 (Tex. Crim. App. 1997) ................. 18

Ex parte Smiley, No. WR-31,454-03 (Tex. Crim. App. Nov. 26, 2014) . 4, 6

Ex parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005) .................. 1

Falkner v. Southwestern Sav. and Loan Ass’n of Houston, 320 S.W.2d

  164 (Tex. Civ. App.—Austin 1958)....................................................... 15




                                             v
Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex. App.—Austin

  2004) ..................................................................................................... 14

Morrissey v. Brewer, 408 U.S. 471 (1972) ........................................ 20, 21

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971

  S.W.2d 439 (Tex. 1998)........................................................................... 6

Public Utility Com’n of Texas v. City Public Service Bd. of San Antonio,

  53 S.W.3d 310 (Tex. 2001) .................................................................... 13

State v. Public Utility Com’n of Texas, 883 S.W.2d 190 (Tex. 1994) ..... 15

Texas Advocates Supporting Kids with Disabilities v. Texas Educ.

  Agency, 112 S.W.3d 234 (Tex. App.—Austin 2003) ............................. 13

Warren v. State, 652 S.W.2d 779 (Tex. Crim. App. 1983) ........................ 6

Statutes

H.B. 1433 Comm. Report (Amended), 74th Leg. (April 11, 1995) .......... 19

Tex. Code Crim. Proc. art. 42.18 § 7 ....................................................... 14

Tex. Code Crim. Proc. art. 42.18 § 8(c) ..................................................... 1

Tex. Gov’t Code § 494.001 ....................................................................... 14

Tex. Gov’t Code § 498.001(5) ................................................................... 30

Tex. Gov’t Code § 498.003(a) ................................................................... 30

                                                      vi
Tex. Gov’t Code § 508.001(5) ............................................................. 16, 17

Tex. Gov’t Code § 508.143(b) ................................................................... 17

Tex. Gov’t Code § 508.147(a) ............................................................. 16, 31

Tex. Gov’t Code § 508.147(b) ....................................................... 17, 31, 37

Tex. Gov’t Code § 508.149 ....................................................................... 26

Tex. Gov’t Code § 508.149(b) ..................................................................... 2

Tex. Gov’t Code § 508.185 ....................................................................... 22

Tex. Gov’t Code § 508.186 ....................................................................... 22

Tex. Gov’t Code § 508.188 ....................................................................... 22

Tex. Gov’t Code § 508.190 ....................................................................... 22

Tex. Gov’t Code § 508.283(c) ................................................................... 25

Tex. Gov’t Code §§ 508.181–.192............................................................. 37




                                                vii
                         STATEMENT OF THE CASE

      In 1994, Applicant was convicted of theft in Dallas County and

sentenced to twenty-five years’ imprisonment (the “theft conviction”). See

Order at 1, Ex parte Smiley, Nos. WR-31,454-03 & WR-31,454-04 (Tex.

Crim. App. Apr. 29, 2015) (per curiam) (Order). In 2006, while he was on

parole for his theft conviction, Applicant was convicted of injury to a child

in Tarrant County, and sentenced to ten years’ imprisonment to be served

concurrently with the sentence for his theft conviction (the “injury to a

child” conviction). Id. Applicant’s theft conviction is subject to the pre-

1996 mandatory supervision (MS) statute, while his injury to a child

conviction is governed by the “discretionary” mandatory supervision

(DMS) statute in effect on his offense date. Id.; see Tex. Code Crim. Proc.

art. 42.18 § 8(c) (West 1994)1 (demonstrating that Applicant’s theft

conviction is governed by the pre-DMS statute); see also Tex. Gov’t Code



      1 In 1997, the Texas Legislature repealed Article 42.18, and recodified its
provisions into Section 508.149(b) of the Texas Government Code. See Ex parte
Geiken, 28 S.W.3d 553, 555 (Tex. Crim. App. 2000); see also Acts 1997, 75th Leg., ch.
165, § 12.22, eff. Sept. 1, 1997. However, Applicant’s theft conviction is governed by
former Article 42.18. See Ex parte Thompson, 173 S.W.3d 458, 459 (Tex. Crim. App.
2005) (the statute in effect when the holding offense is committed determines an
inmate’s eligibility for release to MS for that offense).
                                          1
§ 508.149(b) (West 2006) (demonstrating that Applicant’s injury to a child

conviction is governed by the DMS statute).

      As relevant here, the Texas Department of Criminal Justice (TDCJ)

calculated the DMS-notice date for Applicant’s injury to a child conviction

based upon the presumptive release date for Applicant’s then controlling

eligible offense, 2 which at that time was Applicant’s twenty-five year

theft conviction. Order at 1; 1SCHR at 10.3 Hence, Applicant was

provided DMS notice for his injury to a child conviction on January 29,

2013—premised upon the date Applicant would be presumptively eligible

for release to MS for his theft conviction, on May 12, 2013. 1SCHR at 10.

The Board of Pardons and Paroles (Board) voted to deny Applicant DMS


      2 A “controlling” offense in this context is defined as follows: “When an inmate
has multiple convictions, he will have one conviction which governs his release date,
either because it is the most recent, contains the longest sentence, or has the least
amount of time credits. It is the conviction that will keep the prisoner in custody for
the greatest amount of time.” Ex parte Mabry, 137 S.W.3d 58, 63 (Tex. Crim. App.
2004) (Keasler, J., concurring).
      3   “1SHCR” refers to the “1st Supplemental Clerk’s Record” prepared by the
clerk of the 213th District Court for this habeas proceeding; it is also attached as
Appendix 1 to this brief. “2SHCR” refers to the “2nd Supplemental Clerk’s Record”
prepared by the clerk of the 213th District Court for this habeas proceeding; it is also
attached as Appendix 2 to this brief. “3SHCR” refers to the “3rd Supplemental Clerk’s
Record” prepared by the clerk of the 213th District Court for this habeas proceeding;
it is also attached as Appendix 3 to this brief. “SHCR” refers to the “Clerk’s Record”
prepared by the clerk of the 213th District Court for this habeas proceeding; it is also
attached as Appendix 4 to this brief.
                                           2
release for his injury to a child conviction on April 10, 2013 (the “initial

DMS vote”). Id. The Board then reviewed and denied Applicant release

to DMS on his injury to a child conviction two additional times, with a

fourth DMS review date scheduled for December of 2015. Id.

     Applicant challenged the timing of the initial DMS vote in this

habeas application, filed pursuant to Article 11.07 of the Code of Criminal

Procedure. SHCR at 2–24. To this end, he contends, in part, that he was

entitled to a DMS vote for his injury to a child conviction sometime in

2010, when the aggregate good time and calendar time for that sentence

equaled its ten-year term. SHCR at 8. As a result, he suggests that his

due process rights under both the state and federal constitutions were

violated because the Board waited more than two years to review and

deny him for release to DMS for his injury to a child conviction. SHCR

21–23.

     The state habeas trial court entered proposed findings of fact and

conclusions of law recommending that Applicant’s application be denied

as moot because the Board had already voted three times to deny him

DMS. SHCR at 60–65. After receiving the trial court’s recommendation,


                                     3
the Court placed the application in abeyance and ordered the trial court

to obtain affidavits from TDCJ to resolve several factual issues: to enter

additional findings of fact and conclusions of law as to when Applicant

was eligible for release to DMS for his injury to a child conviction, and to

determine when the Board voted to deny release. Order at 1–2, Ex parte

Smiley, No. WR-31,454-03 (Tex. Crim. App. Nov. 26, 2014) (per curiam).

     Upon remand, the trial court obtained an affidavit from TDCJ, and

again entered proposed findings of fact and conclusions of law

recommending that Applicant’s application be denied. 3SHCR at 2–9.

Upon receipt of those recommendations, the Court filed and set this

application for submission to resolve the following two issues:

     (1)   to determine the remedy, if any, for the failure to vote
           on Applicant’s original discretionary mandatory release
           date in a timely fashion; and

     (2)   to determine the legality of TDCJ’s policy of not
           “releasing” a prisoner to mandatory supervision on one
           concurrent sentence until the prisoner is “eligible for
           release” on all concurrent sentences.

Order at 2. The Court also invited the Office of General Counsel of TDCJ

to submit a brief to assist the Court in resolving the two issues. Id.



                                     4
              STATEMENT REGARDING ORAL ARGUMENT

      TDCJ respectfully submits that the primary legal questions raised

in this appeal are adequately presented in the briefs and record, and that

the decisional process on this point would not be significantly aided by

oral argument.

                         STATEMENT OF THE ISSUES

      Applicant contends that the decision to link his initial DMS vote—

which occurred in 2013—to the date he was presumptively eligible for

MS release for his then controlling theft conviction, violates his due

process protections under both the federal and state constitutions.

Relatedly, Applicant now suggests that TDCJ’s alleged failure to

physically release him to mandatory supervision for his theft conviction

in 2013, despite the fact that he had not qualified for physical release

under the DMS statute for his injury to a child conviction, was

unconstitutional too.4 And while Applicant suggests the existence of a


      4  This claim, i.e., that Applicant should have been physically released to MS
for his theft conviction in 2013, was first raised in his brief filed in this Court on June
25, 2015. See Applicant’s Brief at 15–26, Ex parte Smiley, Nos. WR-31,454-03 & WR-
31,454-04 (Tex. Crim. App. June. 25, 2015). In other words, it appears that Applicant


                                            5
due process violation in his application, the two issues raised in the Order

appear to frame the issue more broadly, to include the “legality” of

Applicant’s sentence calculation, generally. See Order at 2.

      Important too, TDCJ notes with some concern that the second issue

identified in the Order might be construed by Applicant as extending to

hypothetical facts not presently before the Court. In other words, to the

extent that the second issue invites consideration of the manner and

timing in which TDCJ releases prisoners to mandatory supervision in all

cases—and across the full spectrum of possible sentence combinations—

such an opinion would be advisory and improper.5 For this reason, TDCJ

has limited its legal analysis to the calculation of Applicant’s particular

sentence combination. This is not to say that the parties should not refer




did not advance this claim as part of his original habeas application. See SHCR at 7–
10, 21–23. In an abundance of caution, however, and because this new claim might
fairly be construed as being part of the second issue designated by the Court in its
Order, TDCJ will address it below.
      5  This Court “do[es] not write advisory opinions.” Warren v. State, 652 S.W.2d
779 (Tex. Crim. App. 1983). And as the Texas Supreme Court has explained in greater
detail: “The courts of this state are not empowered to give advisory opinions. This
prohibition extends to cases that are not yet ripe. A case is not ripe when its resolution
depends on contingent or hypothetical facts, or upon events that have not yet come to
pass.” Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439,
443 (Tex. 1998) (internal citations omitted).
                                            6
to hypothetical sentence combinations to explore the full meaning of the

relevant statutory text, but only that Applicant should not be permitted

to use his circumstances to dictate TDCJ policies for unrelated inmates.

                      SUMMARY OF THE ARGUMENT

      In his application Applicant faults the Board for conducting the

initial DMS-vote in 2013, but he fails to describe how he thinks a

favorable 2010 DMS-vote would have affected his continuing physical

incarceration in the Correctional Institutions Division of TDCJ (TDCJ-

CID). 6 Presumably, Applicant does not contend that his hypothetical

2010-“release” to DMS for his then non-controlling injury to a child

offense would have required TDCJ-CID to physically release him for his

then controlling theft offense. In other words, surely Applicant does not

mean to suggest that his physical custody in TDCJ-CID is controlled by

his shortest concurrent sentence. Such an approach would do so much

violence to the statutory framework governing these questions that there



      6 Applicant’s argument is necessarily premised on the possibility that he might
have received a favorable DMS vote in 2010. Absent the possibility of a favorable vote,
there is no liberty interest to protect.



                                          7
is little reason to address it further. 7 Hence, TDCJ will assume Applicant

contends that—upon a (hypothetical) favorable DMS vote in 2010—he

would have remained in TDCJ-CID’s physical custody until he was

physically released for the theft offense.

      The first and second questions posed by the Court are intertwined.

The first assumes Applicant’s minor premise—that the Board’s initial

DMS vote was untimely—then asks whether a remedy exists given that

Applicant was subsequently reviewed and denied release to DMS three

times. Since Applicant has already received a DMS vote, there is nothing

to remediate; the question appears to be moot. In the alternative, the

answer to the second question if resolved in favor of TDCJ and the Board,

would also resolve the first, and establish that the initial DMS vote was

not untimely. And if the Court agrees that neither TDCJ nor the Board

violated the relevant statutory text when determining the timing for the

initial DMS vote, there could be no due process violation—whatever due



      7 In such a system, an inmate who received a life sentence in 1990, and who
was then paroled in 2005, could intentionally commit a minor DMS-eligible offense,
and effectively nullify TDCJ-CID’s authority to maintain legal custody for the life
sentence at the moment the inmate received a favorable DMS-vote for the new
concurrent sentence.
                                        8
process protections attach to Applicant’s initial DMS vote, they

necessarily flow from the text of the controlling statutes.

     Again, Applicant necessarily assumes that he could have obtained

the benefit of DMS-“release” for his non-controlling injury to a child

sentence in 2010, while continuing to remain in TDCJ-CID’s physical

custody for his theft offense. TDCJ will first analyze the legal and

statutory implications of this assumption and demonstrate that it creates

a serious conflict with both the relevant statutory framework and the

opinions of this Court. Applicant’s assumption creates a cascade of

interpretive absurdities that are heightened here because—as is often

the case when analyzing the statutes controlling MS, DMS, and parole—

the provisions rarely make any reference to the dictates of the others.

     Moreover, Applicant’s contention that he should have been

physically released to MS for his theft conviction in 2013, is also

erroneous because it assumes that his controlling concurrent sentence is

static. It ignores the statutory text demonstrating that Applicant’s injury

to a child offense became the controlling sentence when he became

presumptively eligible to MS for his theft conviction. As TDCJ will


                                     9
establish below, where an inmate has multiple concurrent, but dissimilar

sentences, only one can be controlling at any given time, and the

controlling sentence may change during that inmate’s incarceration. 8

      In complying with their constitutional and statutory authority to

interpret the law on these questions, TDCJ and the Board attempted to

harmonize the relevant provisions as much as possible, so as to give full

effect to them all. To this end, TDCJ advances a statutory interpretation

that it believes resolves the absurdities created by Applicant’s suggested

approach, and which supports both its argument that Applicant’s initial

DMS vote was timely, and that Applicant is not entitled to MS release

for his theft conviction until he receives a favorable DMS vote on his

injury to a child conviction. And compellingly, TDCJ’s suggested

approach already finds support in this Court’s jurisprudence.

      Finally, TDCJ unreservedly acknowledges the difficulty in

performing textual analysis on this particular statutory framework. And

while TDCJ has attempted to harmonize the complex statutory



      8 When referring to “controlling sentence” in this context, TDCJ means the
longest, remaining concurrent sentence for calculating MS or DMS eligibility—
measured at a particular point in time.
                                      10
commands regarding Applicant’s particular sentence combination—in

good faith—TDCJ looks to the Court for guidance moving forward.

                              ARGUMENT

I.   Since Applicant Was Thrice Reviewed and Denied Release to DMS
     for His DMS-Eligible Offense, There Is Nothing to Remediate; the
     Issue is Moot.

     This Court previously held with reference to the DMS statute at

issue here that “an eligible inmate has a vested, statutory entitlement to

release on mandatory supervision, but it is a defeasible interest—one

that may be defeated, but only if the parole panel makes these findings

in its review.” Ex parte Retzlaff, 135 S.W.3d 45, 48–49 (Tex. Crim. App.

2004). But the Court went further when it held that the remedy for the

failure to comply with the procedural obligations created by the DMS

statute is to conduct a procedurally proper DMS hearing. Id. at 51

(“Because the mandatory supervision statute requires release unless a

parole panel makes specific findings, we find that [Applicant’s] . . .

continued incarceration is illegal and unconstitutional unless, within

sixty days, a parole panel has given him timely notice of a review to be

held before the fifty-ninth day and has provided him at least thirty days


                                   11
to submit whatever explanatory material he wishes the panel to

consider.”).

      This has already happened. 1SHCR at 10. Because Applicant has

thrice been reviewed and denied release to DMS, he has already received

his remedy for the purported delay in conducting the initial DMS vote,

and the issue before the Court appears to be moot. TDCJ acknowledges

that Applicant’s claim might nevertheless be justiciable under the

“capable of repetition, yet evading review” doctrine. E.g., Ex parte

Bohannan, 350 S.W.3d 116, 119–20 (Tex. Crim. App. 2011) (analyzing

this exception to the mootness doctrine). However, Applicant’s claim may

fail to meet this exception for the same reason that the Court refused to

extend the exception in Bohannan: because there is no reason to believe

Applicant would again be subjected to the procedure at issue here.9 See

id.




      9  While TDCJ would undoubtedly benefit from the Court’s guidance on these
questions, the undersigned, as an officer of the Court, is duty-bound to raise the
possibility of mootness.
                                       12
II.   In the Alternative, Because the Initial DMS Vote Was Timely,
      Applicant’s Rights Could Not Have Been Violated.

      Applicant’s argument regarding the timing of the DMS vote is

premised upon his legal and factual assumption that the initial

determination to deny his release to DMS for his injury to a child

conviction should have occurred in 2010. As TDCJ will establish below,

however, this assumption is inaccurate.

      A.   Both TDCJ and the Board have independent legal authority
           to interpret Texas statutes related to their core, legislatively-
           created functions, including the interpretation of laws to
           determine how to calculate sentences and to institute parole
           review procedures.

      As a general rule, when the Legislature expressly confers a power

on a state agency, it also impliedly grants whatever powers are

reasonably necessary to fulfill its express functions or duties. Texas

Advocates Supporting Kids with Disabilities v. Texas Educ. Agency, 112

S.W.3d 234, 238 (Tex. App.—Austin 2003, no pet. hist.); Public Utility

Com’n of Texas v. City Public Service Bd. of San Antonio, 53 S.W.3d 310

(Tex. 2001), reh’g of cause overruled, (Sept. 20, 2001). The only

interpretative requirement placed on an administrative agency when

exercising the powers and authority granted by the Legislature, is that
                                    13
the agency’s interpretations must be consistent with the constitution and

state statutes. Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex.

App.—Austin 2004, pet. dism’d w.o.j.); see also, Ex parte Keller, 173

S.W.3d 492, 496 n.14 (Tex. Crim. App. 2005).

     In the present circumstance, the Legislature conferred upon the

Board the power to determine the application and function of mandatory

supervision statutes, and necessarily the power to interpret those

statutes. See Tex. Code Crim. Proc. art. 42.18 § 7 (West 1996), repealed

by Acts 1997 75th Leg., ch. 165 § 12.22, effective September 1, 1997;

codified as Government Code Chapter 508 by Acts 1997 75th Leg., ch.

165 § 12.01, effective September 1, 1997; Tex. Gov’t Code §§ 508.001,

508.0441(c)(1). So too, the Legislature necessarily conferred upon TDCJ

the power to calculate prison sentences, including the authority to

determine when and whether both a sentence and the related term of

incarceration, begins and ends. E.g., Tex. Gov’t Code § 494.001 (“The

mission of the institutional division is . . . to effectively manage or

administer correctional facilities based on constitutional and statutory

standards.”).


                                   14
     So, too, the construction given to a statute by the administrative

agency charged with its enforcement is entitled to great weight by the

state courts faced with construing the same statute, especially if an

agency’s interpretation of an ambiguous statute is consistent and

uniform. State v. Public Utility Com’n of Texas, 883 S.W.2d 190, 196 (Tex.

1994); Falkner v. Southwestern Sav. and Loan Ass’n of Houston, 320

S.W.2d 164, 171 (Tex. Civ. App.—Austin 1958), judgment aff’d in part,

rev’d in part on other grounds, 160 Tex. 417, 331 S.W.2d 917 (1960); see

Ex parte Keller, 173 S.W.3d at 496 n.14.

     Thus, the Court’s constitutional authority to review the pre-

existing and presumptively valid, statutory interpretations made by

TDCJ and the Board, as relevant here, should not be conflated with their

respective and independent authority to interpret those statutes,

including this Court’s decisions related thereto.

     B.    Applicant’s assumption that the initial DMS vote was
           untimely, exposes an interpretative tension within the
           statutory provisions creating the DMS procedure, and creates
           a cascade of potential absurdities.

     Before analyzing the manner in which TDCJ affirmatively

determines the initial DMS-review date for offenders like Applicant, it is
                                    15
necessary to survey the statutory framework upon which Applicant’s

competing approach is based. As TDCJ will establish, Applicant’s

interpretive approach leads to “odd results,” which when harmonized

with the relevant text as a whole, supports the sentence methodology

used by TDCJ. See Ex parte Forward, 258 S.W.3d 151, 155 (Tex. Crim.

App. 2008) (“The statutory provisions can be harmonized to avoid such

odd results.”).

      As it relates to Applicant’s DMS-eligible sentence, the Government

Code defines “mandatory supervision” as:

      (5) “Mandatory supervision” means the release of an eligible
      inmate sentenced to the institutional division so that the
      inmate may serve the remainder of the inmate’s sentence not
      on parole but under the supervision of the pardons and
      paroles division.

Tex. Gov’t Code § 508.001(5) (West 2006) (emphasis added). Obviously,

the statute governing release to “mandatory” supervision uses

mandatory language. See Tex. Gov’t Code § 508.147(a) (West 2006)

(“Except as provided by Section 508.149, a parole panel shall order the

release of an inmate who is not on parole to mandatory supervision when

the actual calendar time the inmate has served plus any accrued good


                                   16
conduct time equals the term to which the inmate was sentenced.”)

(emphasis added); see also Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex.

Crim. App. 1998) (noting that the precursor to § 508.147(a) is

mandatory).

     And under the relevant DMS statutes, the Board’s vote to release

an inmate to DMS requires TDCJ-CID to transfer that inmate’s factual

and legal custody to the “state,” see Tex. Gov’t Code § 508.143(b) (West

2006), and particularly to the direct control of the Pardons and Parole

Division of TDCJ (TDCJ-PD), see Tex. Gov’t Code § 508.001(5), and under

the ultimate control of the Board to revoke or continue parole. See Tex.

Gov’t Code § 508.147(b) (“An inmate released to mandatory supervision

is considered to be released on parole.”). Plainly then, the Legislature’s

intent appears to be that an inmate’s “release” to DMS—like his release

to parole—necessarily entails his release from TDCJ-CID’s physical

custody to the control of an entity outside the prison walls.

     Indeed, this Court has previously determined that “release” to DMS

cannot occur unless two conditions are met: (1) the inmate cannot have

any “other convictions or warrants authorizing their continued


                                    17
confinement,” and (2) “a parole panel has not determined such a release

would endanger the public with the offense having been committed on or

after September 1, 1996.” Ex parte Schroeter, 958 S.W.2d 811, 813 n.4

(Tex. Crim. App. 1997). The Court’s rationale in Schroeter gives strong

support to the common-sense notion under this statutory scheme that

“release” means physical release. See id. Moreover, because Applicant did

not meet both of the requirements in Schroeter, he could not have been

released in 2010. Id.

     And the requirement that an inmate’s “release” to mandatory

supervision (or parole) means his physical release from TDCJ-CID’s

custody is implicit throughout both this Court’s opinions, and the

statutory framework mandating the terms of such release. For instance,

in Retzlaff, the Court reasoned that the purpose of the DMS statute was

“to permit a parole panel to exercise some discretion in deciding whether

a person who was eligible for release on mandatory supervision should,

nonetheless, be kept in custody.” 135 S.W.3d at 48 (emphasis added). The

term “in custody” as used in Retzlaff suggests that MS release refers to a

break in an inmate’s continued confinement within TDCJ-CID. See id. In

                                   18
other words, Retzlaff suggests that the Board’s decision to grant DMS

entails a break in the inmate’s continued incarceration for the sentence

upon which DMS was granted. In arriving at this conclusion, the Court

cited the legislative history for the DMS statute. Id. n.8 (citing H.B. 1433

Comm. Report (Amended), 74th Leg. (April 11, 1995) (“[t]he purpose of

this Act is to give the Pardons and Parole Board a lever to close the

‘automatic open door’ of mandatory supervision. . . . This legislation

allows for discretionary release by the Pardons and Parole Board for all

inmates, while still providing for the original intent of the legislation,

supervised release, in most instances”)). When the Legislature referred

to the “automatic open door” under the previous non-DMS scheme, surely

it did not envision that an inmate’s “release” to DMS would result in his

continued incarceration in TDCJ-CID, in the same cell, pursuant to a

different sentence. See id.

     And in Ex parte Hale, the Court also distinguished between

conditional releases resulting from parole and MS on the one hand, with

continued incarceration on the other. 117 S.W.3d 866, 872 (Tex. Crim.

App. 2003) (“Conditional releases are highly desired alternatives to


                                    19
incarceration. For the overwhelming majority of defendants, release is

not the penalty; incarceration is. Our files do not bulge with petitions

from prisoners complaining of being punished by being released, and

demanding to be imprisoned.”). Much of the Court’s jurisprudence in this

regard supports this distinction.

     More troubling, Applicant’s approach would eviscerate the requisite

constitutional premise upon which this Article 11.07 challenge is based.

If he remained in TDCJ-CID custody after his hypothetical DMS release

in 2010 for his injury to a child conviction, how then would he possess a

liberty interest sufficient to raise the present challenge? As the Supreme

Court explained, absent a physical release, there is nothing to protect:

     Parole arises after the end of the criminal prosecution,
     including imposition of sentence. Supervision is not directly
     by the court but by an administrative agency, which is
     sometimes an arm of the court and sometimes of the
     executive. Revocation deprives an individual, not of the
     absolute liberty to which every citizen is entitled, but only of
     the conditional liberty properly dependent on observance of
     special parole restrictions.

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (emphasis added).

Morrissey is premised on the existence of a conditional liberty interest

created by an inmate’s actual physical release to the “street.” See id. It is
                                     20
the parolee’s change in physical custody, e.g., when his conditional liberty

in continued parole is terminated in favor of his return to prison, which

implicates the Due Process Clause. Id. Absent the possibility of obtaining

the qualified liberty interest identified in Morrissey, there would be no

due process right to protect. Remarkably, Applicant’s statutory

construction removes the minimum constitutional requirement from the

DMS statute for inmates in his circumstance. In other words, if Applicant

obtained a favorable DMS vote in 2010, but—pursuant to his view of

Texas law—remained in TDCJ-CID’s physical custody for his injury to a

child conviction, he would not obtain a conditional liberty interest

sufficient to invoke the minimum procedural due process protections

attendant to the decisions related to the custody he now challenges. See

id. If Applicant’s statutory interpretation was correct, and if he was

permitted to serve his post-DMS-release for his injury to a child

conviction in TDCJ-CID’s physical custody, then this habeas application

would be non-cognizable, because there would be no conditional liberty

interest to protect. Hence, if Applicant is correct, the Court should

dismiss this claim as non-cognizable.


                                    21
     The statutory framework that would have governed the terms of

Applicant’s hypothetical “release” to DMS in 2010, also suggest that the

Legislature intended DMS-release to mean the physical release from

TDCJ-CID’s custody. For example, a parole panel shall require as a

condition of mandatory supervision, all of the following:

     1. For those releasees guilty of stalking offenses, that the
        releasee not go near the victim, the victim’s residence,
        place of employment, or business, nor go near a school or
        day-care facility where a dependent of the victim is in
        attendance. Tex. Gov’t Code § 508.190.

     2. Any releasee who attended an in-prison substance abuse
        program “immediately before release,” must continue to
        attend a “drug or alcohol abuse continuum of care
        treatment program” after physical release, developed by
        the Texas Commission on Alcohol and Drug Abuse. Tex.
        Gov’t Code § 508.185.

     3. A releasee for whom a court has made an affirmative
        finding that the offense was committed because of bias or
        prejudice, must “perform not less than 300 hours of
        community service at a project designated by the parole
        panel that primarily serves the person or group that was
        the target of the releasee.” Tex. Gov’t Code § 508.188.

     4. All releasees who are required to register as a sex offender
        actually register. Tex. Gov’t Code § 508.186.




                                   22
All of these mandatory conditions assume that the releasee is no longer

in TDCJ-CID’s physical custody. An assumption hard to reconcile with

Applicant’s contrary view.

     Moreover, Applicant’s contention that the Board was required to

perform his initial DMS vote in 2010 leads to an array of other bizarre

and absurd outcomes. Again, if we assume the Board granted Applicant

DMS-“release” in 2010 (for his injury to a child conviction), this legal

determination would require TDCJ-CID to transfer custody of the inmate

to a separate entity outside the walls of the prison system, e.g., to TDCJ-

PD—despite the fact that the inmate was concurrently serving another,

longer, prison sentence in CID’s custody. And again, the Legislature

likely intended that DMS-release result in the inmate’s immediate

physical release from the custody of TDCJ-CID. But even assuming that

the Legislature’s intent on this question was non-determinate, in order

to achieve his result, and given there is no statutory framework

authorizing hybrid custody within TDCJ-CID, Applicant necessarily asks

the Court to order TDCJ-PD and the Board to assume legal custody and




                                    23
control of Applicant for his DMS-sentence, while he remains in TDCJ-

CID for another sentence. 10

      And his position creates another set of interpretive problems. If

Applicant had been “released” to DMS in 2010 (while still in TDCJ-CID’s

physical custody for his theft offense), how would he continue to earn flat-

time toward his DMS sentence? If Applicant contends that he is entitled

to earn flat-time then he is necessarily asking this Court to order TDCJ-

CID to award flat-time toward the DMS sentence, despite the fact that

Applicant is no longer serving that sentence in TDCJ-CID’s legal custody;

and despite the fact that no other entity has restricted his liberty thereto

by means of a detainer or blue-warrant. See Ex parte Canada, 754 S.W.2d

660, 668 (Tex. Crim. App. 1988) (“[A]pplicant is entitled to receive credit

off his sentence for the seventy-four calendar days in which he was

confined prior to the Board’s withdrawal of the pre-revocation warrant

and the initial continuation of his parole.”). Applicant cites no textual


      10  This concern outlines the problem with Applicant’s poorly conceived
approach. While there may be nothing in the statutory framework explicitly
preventing such hybrid custody within TDCJ-CID, the potential cost to TDCJ-PD and
the Board to extend and maintain legal custody and control of such “releasees”
strongly suggests that this requirement should come from the Legislature, and not
the Court.
                                       24
support for this outcome, and absent a statutory basis upon which to earn

flat-time, his conditional release in 2010 would have prevented TDCJ

from giving him credit toward his sentence. Hale, 117 S.W.3d at 871 (“In

each form of conditional release (probation, parole, and mandatory

supervision) no credit against a sentence is given for the time spent on

conditional release.”).

     Or perhaps Applicant means to suggest that inmates in his position

should earn street-time toward their DMS-sentences, despite the fact

that they remain in TDCJ-CID custody for a different sentence. See Tex.

Gov’t Code § 508.283(c) (outlining the circumstances in which a parolee

is entitled to street-time credit). Indeed, if Applicant intends this—and

given the ephemeral and revocable nature of street-time credit—

Applicant is putting all similarly situated inmates in a less advantageous

position than if the 2010 DMS vote had not occurred at all. See id.

     In other words, Applicant’s poorly conceived position may make it

impossible for some inmates to discharge, day-for-day, their non-

controlling DMS-sentences, after DMS-“release,” despite the fact that

they remain in prison, and would unquestionably have received flat-time


                                   25
credit if the 2010 DMS-vote had not occurred. Applicant fails even to

acknowledge these serious interpretive problems, let alone to suggest a

way to solve them.

     Finally, Applicant’s approach ignores the text of Government Code

Section 508.149(b), which justifies the decision to link Applicant’s DMS-

vote to the presumptive date for Applicant’s MS release for his theft

conviction. Section 508.149 reads, in relevant part:

     (b) An inmate may not be released to mandatory supervision
         if a parole panel determines that:

           (1) the inmate’s accrued good conduct time is not
               an accurate reflection of the inmate’s potential
               for rehabilitation; and

           (2) the inmate’s release would endanger the public.

Tex. Gov’t Code § 508.149 (West 2006). Applicant’s situation

demonstrates the problem with his interpretation. If the Board were

required to perform Applicant’s initial DMS-vote in 2010, more than two

years before Applicant could have been physically released with respect

to his controlling theft conviction, how then could the Board accurately

determine whether his release to DMS “would endanger the public”?



                                   26
     As this Court held in an analogous circumstance, to ensure the

accuracy of the Board’s determination to grant or deny DMS release, that

vote must be premised upon timely, up-to-date information regarding the

inmate’s propensity to be a danger to the public. Retzlaff, 135 S.W.3d at

49 (“The two statutory findings that justify non-release are predictive

judgments based upon discrete factual conclusions and subjective

appraisals. Necessarily, then, they are highly contingent upon accurate,

up-to-date information and explanation.”). Like any inmate, Applicant’s

conduct in prison during the intervening two years (between a

hypothetical and favorable 2010 DMS vote, and his ultimate physical

release), could establish that his release would endanger the public.

Applicant’s interpretation could reduce the accuracy of the public safety

inquiry, surely contrary to legislative intent. By requiring a Board vote

in 2010, Applicant would have this Court nullify the textual command

and statutory purpose of § 508.149(b).

     In sum, because his “release” to DMS for his injury to a child offense

was impossible—at least for so long as his theft offense was controlling—




                                   27
TDCJ will look to the remaining statutory text as a whole in an effort to

resolve the apparent absurdities.

     C.    Applicant’s legal rights could not have been violated with
           respect to his DMS sentence, because the Legislature limited
           the force and effect of good-time to only his conviction for
           theft—at least while he was serving his controlling,
           concurrent sentence for theft.

     In circumstances like this, when the text of a statute could lead to

absurd results, the Court has provided those agencies tasked with

enforcing the Legislative mandates with guidance as to how to proceed:

           When we interpret statutes, we seek to effectuate the
     collective intent or purpose of the legislators who enacted the
     legislation. We focus our attention on the literal text of the
     statute in question and attempt to discern the fair, objective
     meaning of that text at the time of its enactment. Thus, if the
     meaning of the statutory text should have been plain to the
     legislators who voted on it, we ordinarily give effect to that
     plain meaning. The exception is when application of a
     statute’s plain language would lead to absurd consequences
     that the legislature could not possibly have intended; in such
     a case, we refer to extratextual factors to determine legislative
     intent.

Ruthart, 980 S.W.2d at 471 (internal citations omitted). As already

established, Applicant’s reading of the relevant DMS statutes necessarily

means that the Board’s initial DMS vote was untimely. But as also



                                    28
established, Applicant’s interpretation leads to several unworkable,

ambiguous, and absurd results.

     To this end, TDCJ directs the Court to other provisions within the

relevant statutory framework, which support the manner in which

Applicant’s sentences were calculated here, and which suggest that

Applicant’s initial DMS vote was timely. By harmonizing the statutory

provisions suggesting the necessity of an earlier DMS vote with the

Legislature’s other directives, the methodology used by TDCJ finds

support.

     As relevant here, Chapter 498 of the Government Code reads:

     (2) “Term” means:

           (A) the term of confinement in the institutional
               division stated in the sentence of the
               convicting court, if the inmate is serving a
               sentence for a single offense;

           (B) the term of confinement established by Section
               508.150, if the inmate is serving two or more
               sentences consecutively; or

           (C) the longest term of confinement in the
               institutional division stated in the sentence of
               the convicting court, if the inmate is serving
               two or more concurrent sentences.


                                   29
Tex. Gov’t Code § 498.001(5) (emphasis added). Plainly then, for purposes

of Chapter 498, in 2010 Applicant’s “term of confinement” referred to his

theft conviction, which was Applicant’s longest, controlling term. See id.;

see also supra, note 2. This definition is important because, later in the

same chapter, the Legislature narrows the force and effect of good-

conduct time to the availability of DMS with specific reference to Chapter

508. Specifically, Chapter 498 states:

     Good conduct time applies only to eligibility for parole or
     mandatory supervision as provided by Section 508.145 or
     508.147 and does not otherwise affect an inmate’s term.

Tex. Gov’t Code § 498.003(a) (West 2006) (emphasis added). Again, this

provision is important because it extends—by explicit reference—the

limitations that Chapter 498 places on the relevance of good-time and the

availability of DMS to the “mandatory” command found in § 508.147(a).

See id. By its literal terms then, § 498.003(a) limits the availability of

DMS as derived from § 508.147(a), as follows:

     Except as provided by Section 508.149, a parole panel shall
     order the release of an inmate who is not on parole to
     mandatory supervision when the actual calendar time the
     inmate has served plus any accrued good conduct time equals
     the term to which the inmate was sentenced.


                                    30
Tex. Gov’t Code § 508.147(a) (West 2006) (emphasis added). It bears

repeating: the Legislature explicitly limited the effect of good time, and

specifically its capacity to contribute to the calculation of mandatory

supervised release, to only “the term to which the inmate was sentenced.”

See id. And given that the definition of “term” in Chapter 498 explicitly

extends to the mandatory directive in § 508.147(a), by means of §

498.003(a), inmates like Applicant are legally entitled to DMS for only

their “longest term of confinement,” at least when serving two or more

dissimilar sentences, concurrently.

     Indeed, the Court has confirmed TDCJ’s interpretation in a similar

circumstance—unanimously—at least in dicta:

           Arguably, the “plain” language of Section 508.147(a)
     applies only to an inmate who has been sentenced to a single
     term and does not apply to an inmate serving multiple
     sentences. This interpretation would also resolve any conflict
     between former Article 42.18, § 8(c), and former Article 42.18,
     § 8(d). This interpretation of Section 508.147(a) would also
     dispose of applicant’s claim that his eligibility for mandatory
     supervision for the offense in cause number 0243176D caused
     the sentence for that offense to cease to operate.

Ex parte Cowan, 171 S.W.3d 890, 894 n.10 (Tex. Crim. App. 2005)

(emphasis added) (internal citations omitted). Although Cowan involved


                                      31
the analysis of consecutive sentences under Government Code §

498.001(5)(B), and not to concurrent sentences under § 498.001(5)(C),

there is no textual reason to treat the two, co-equal subparts differently.

Moreover, Cowan supports TDCJ’s interpretation because the Court

there resolved a similar interpretive dilemma by construing the word

“term” (as utilized in § 508.147(a)) to refer to a single, identifiable,

controlling sentence. The same rationale exists here.

     Thus, a fair reading of the relevant text suggests that Applicant’s

legal rights could not have been violated with respect to his DMS

sentence because the Legislature limited the force and effect of good-time

to only his conviction for theft—at least for so long as his theft offense

was his controlling sentence. In other words, until Applicant’s DMS-

eligible offense became the controlling sentence under Government Code

§ 498.001(5)(C)—which coincided with the initial DMS vote in 2013—he

could not have received the benefit of good time toward calculation of his

DMS eligibility date for his injury to a child conviction. Only after his

DMS sentence became controlling (i.e., only after he qualified for

presumptive MS release for his theft offense), did the mandatory


                                    32
calculation under § 508.147(a) become relevant to his DMS eligible

offense. This is precisely what occurred here, see 1SHCR at 10, and is

wholly consistent with the text of the statute.

      Finally, TDCJ acknowledges this Court’s decision in Ruthart, in

which the Court explicitly declined to incorporate the definition of “term”

from Chapter 498 to define “maximum term” as used in former Article

42.18, § 8(c). Ruthart, 980 S.W.2d at 472 (“[T]his definition is specifically

limited to the Government Code.”). TDCJ distinguishes Ruthart for three

reasons. First, the Court there was faced with both a different statutory

framework (e.g., the definition of “maximum term” as used in former

Article 42.18), and a distinct set of interpretive tensions related to

consecutive sentences. Second, the Court neither addressed nor rejected

TDCJ’s present contention that a fair reading of Government Code §

498.003(a) extends the definition of “term” beyond Chapter 498. Finally,

the Court implicitly adopted the methodology TDCJ used here when it

defined a “maximum term” for a concurrent sentence like that of

Applicant, in a manner that supports the methodology here. See id. at

473 (“For an inmate serving two or more concurrent sentences, we believe


                                     33
his “maximum term” must be the longest of the concurrent sentences,

because this is the sentence that will keep him incarcerated for the

longest amount of time.”). Hence, Ruthart actually supports the

calculation below, and is arguably outcome determinative here.

     In sum, Applicant is entitled to DMS consideration for his injury to

a child conviction, but only after it becomes his controlling sentence. This

approach acknowledges the fact that his “release” to DMS (i.e., to parole)

could never occur unless he was first released from physical custody for

his longest, concurrent and controlling sentence. In other words, when

interpreting these statutory dictates, the Court should distinguish

between “the when of eligibility for release [to DMS] with the whether of

eligibility for release.” Forward, 258 S.W.3d at 151 (emphasis in original).

And as the facts of this case demonstrate, doing so permits TDCJ-CID to

abide by its legal obligation to maintain legal custody and control over

Applicant for his controlling sentence, while also ensuring that Applicant

ultimately receives an up-or-down DMS vote for his injury to a child

conviction—but only after the DMS sentence becomes controlling. It also

avoids the legal absurdity that would result if TDCJ-CID was presented


                                    34
with a certificate of release for Applicant’s DMS-sentence—signifying his

release to parole—but was nevertheless required to maintain Applicant’s

legal and factual custody for his controlling sentence.

       Because Applicant could not have received the benefit of good-time

toward calculation of his DMS-eligibility date for his injury to a child

conviction until after that sentence became controlling, he was not

entitled to a DMS vote in 2010. Hence, the initial DMS vote was not

untimely under the statutory framework, and absent a violation under

that framework, there could not have been a due process violation. See

Retzlaff, 135 S.W.3d at 48–49 (demonstrating that an inmate’s

protectable liberty interest in mandatory release is based on the meaning

and applicability of the relevant statute).

III.   Because Applicant’s Theft Offense Ceased to Be the Controlling
       Sentence As of the Moment He Became Presumptively Eligible for
       MS Release Thereto, Applicant’s Rights Could Not Have Been
       Violated.

       Applicant also suggests that he was entitled to physical release in

May of 2013 under the pre-1996 MS statute for his theft conviction. See

supra, note 4. Hence, according to Applicant, TDCJ violated his due

process rights by failing to physically release him in 2013, and this Court
                                    35
should order such release immediately, despite the fact that he does not

yet qualify for release for his DMS sentence. For the reasons that follow,

Applicant is incorrect.

     A controlling offense “is the conviction that will keep the prisoner

in custody for the greatest amount of time.” Mabry, 137 S.W.3d at 63

(Keasler, J., concurring). When applying the definition of controlling

offense for inmates with dissimilar concurrent sentences, there is no

requirement that the designation be permanent. And yet, Applicant’s

argument is necessarily premised on the idea that his theft offense is

controlling, forever. As TDCJ will establish below, such an assumption

leads to absurd results.

     For instance, Applicant’s approach would force TDCJ-CID to

physically release him to MS for his theft conviction, despite the fact that

the statutory requirements authorizing his release for his injury to child

conviction, had not yet occurred. But until the Board affirmatively

releases Applicant to DMS for his injury to child conviction—signified by

a favorable vote and certificate of release under Chapter 508—there

would be no legal mechanism for the Board to impose parole conditions


                                    36
for that sentence. E.g., Tex. Gov’t Code §§ 508.181–.192 (outlining the

conditions governing parole that attach after an inmate’s affirmative

release for a particular sentence). In other words, absent a certificate of

release issued pursuant to § 508.149 for his DMS offense—which

Applicant has never received—neither the Board nor TDCJ-PD would

ever obtain legal custody of Applicant for that sentence. See Tex. Gov’t

Code § 508.147(b) (“An inmate released to mandatory supervision is

considered to be released on parole.”). Without legal control, there can be

no parole conditions to enforce.

     If Applicant means to suggest that the Legislature intended he

serve the remainder of his injury to a child sentence without being subject

to parole supervision, he makes no effort to account for this result. If

Applicant means to suggest that the Court should order the Board to

grant DMS release for his injury to a child conviction, to permit him the

benefit of physical release to MS for his theft conviction, he cites no

authority for this either.

     Whatever Applicant may intend, if this Court granted his habeas

application, and ordered his physical release to MS for his theft


                                    37
conviction, the Court would effectively allow Applicant to serve the

remainder of his injury to a child sentence beyond the reach and control

of both TDCJ-PD and the Board (at least for that sentence).

     There is a strong statutory basis upon which to avoid the

absurdities created by Applicant’s approach. As established above, by

defining “maximum term” to mean the longest remaining concurrent

sentence—as measured at a given point in time—the absurdities implicit

in Applicant’s approach disappear. As applied here, the moment

Applicant’s good-time and calendar-time totaled the twenty-five year

term for his theft offense (i.e., the presumptive MS date), that sentence

no longer qualified as his controlling sentence, because it no longer

served to justify continued incarceration in TDCJ-CID. At that moment

Applicant’s injury to child sentence became controlling, because it was

the only remaining concurrent sentence that required continued

incarceration in TDCJ-CID.

     Although Applicant does not complain on this point, it is worth

noting that the Board did not formally issue a certificate of MS release

for his theft offense in 2013, despite the fact that he met his presumptive


                                    38
release date for that sentence. As discussed above, doing so would have

led to the statutory absurdities attendant in “releasing” an inmate to MS

while that inmate remains in TDCJ-CID custody for another sentence,

see supra, Section II. This approach also ensured that Applicant would

continue to earn both flat-time toward his sentence for theft.

     Because Applicant’s DMS-eligible sentence became the controlling

sentence (for purposes of the MS release mechanism) as of the date he

was presumptively eligible for MS release for this theft offense, he was

not entitled to physical release in 2013. And absent a statutory violation,

there could not have been a due process violation. See Retzlaff, 135

S.W.3d at 48–49 (demonstrating that an inmate’s protectable liberty

interest in mandatory release is based on the meaning and applicability

of the relevant statute).




                                    39
                           PRAYER FOR RELIEF

      For the foregoing reasons, TDCJ respectfully requests that this

Court dismiss Applicant’s Article 11.07 application as moot, or

alternatively to deny the application, and hold that the manner

methodology used here was correct.11

                                     Respectfully submitted,

                                     KEN PAXTON
                                     Attorney General of Texas

                                     CHARLES E. ROY
                                     First Assistant Attorney General

                                     ADRIENNE McFARLAND
                                     Deputy Attorney General
                                     for Criminal Justice

                                     EDWARD L. MARSHALL
                                     Chief, Criminal Appeals Division

                                     /s/ Joseph P. Corcoran
                                     JOSEPH P. CORCORAN*
*Lead Counsel                        Assistant Attorney General
                                     Supervising Attorney
                                       for Non-Capital Appeals
                                     Criminal Appeals Division
                                     State Bar No. 00793549


      11If the Court adopts a different interpretation, TDCJ humbly asks the Court
to assist it in harmonizing the new approach with the remaining statutory
framework. TDCJ has attempted to identify some of the interpretative tensions
above, and asks the Court to address at least those questions.
                                       40
Joseph.Corcoran@TexasAttorneyGeneral.gov

P. O. Box 12548, Capitol Station
Austin, Texas 78711

ATTORNEYS FOR THE TEXAS
DEPARTMENT  OF  CRIMINAL
JUSTICE




 41
                     CERTIFICATE OF SERVICE

     Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate

Procedure, I do hereby certify that if the email address of the attorneys

designated below is on file with the electronic filing manager, a true and

correct copy of the foregoing notice was served electronically by that

electronic filing manager, on the following attorneys via electronic mail:

           Kenneth Nash
           State Counsel for Offenders
           Attorney for Applicant

           Andrea Jacobs
           Assistant Criminal District Attorney
           Tarrant County, Texas

     Moreover, I do hereby certify that if the email addresses for the

designated attorneys are not on file with the electronic filing manager, a

true and correct copy of the foregoing pleading was served by email,

addressed to:

           Kenneth Nash
           Ken.Nash@tdcj.texas.gov

           Andrea Jacobs
           atjacobs@tarrantcounty.com

                                  /s/ Joseph P. Corcoran
                                  JOSEPH P. CORCORAN
                                  Assistant Attorney General

                                    42
            CERTIFICATE OF COMPLIANCE WITH
        TEXAS RULE OF APPELLATE PROCEDURE 73.1(f)

     This brief complies with Tex. R. App. Proc. 73.3 in that it contains

9,055 words, as calculated pursuant to Tex. R. App. Proc. 73.1(d), in

Microsoft Word 2013, Century, 14 points.

                                 /s/ Joseph P. Corcoran
                                 JOSEPH P. CORCORAN
                                 Assistant Attorney General




                                  43
               Nos. WR-31,454-03 & WR-31,454-04
                    ______________________________

              IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS
                   ______________________________

         EX PARTE RODNEY ELNESTO SMILEY, Applicant.
                 ______________________________
             On Application for a Writ of Habeas Corpus

                 Cause No. C-213-010293-1011284-B
           In the 213th District Court from Tarrant County

                      Cause No. W94-02594-U(A)
            In the 291st District Court from Dallas County
                    ______________________________

                             APPENDICES
                    ______________________________
KEN PAXTON                                    *JOSEPH P. CORCORAN
Attorney General of Texas                    Assistant Attorney General
                                                   Supervising Attorney
CHARLES E. ROY                                  for Non-Capital Appeals
First Assistant Attorney General              Criminal Appeals Division
                                                 State Bar No. 00793549
ADRIENNE McFARLAND               Joseph.Corcoran@TexasAttorneyGeneral.gov
Deputy Attorney General
for Criminal Justice                           *Lead Appellate Counsel
                                        P. O. Box 12548, Capitol Station
EDWARD L. MARSHALL                                  Austin, Texas 78711
Chief, Criminal Appeals Division              Telephone: (512) 936-1400
                                               Facsimile: (512) 936-1280
                     _____________________________
                        ATTORNEYS FOR THE
           TEXAS DEPARTMENT OF CRIMINAL JUSTICE
        APPENDIX A

1st Supplemental Clerk’s Record
        APPENDIX B

2nd Supplemental Clerk’s Record
                                                                                                           0 3I,43V~0V
                                                              2nd SUPPLEMENTAL


                                                        CLERK'S RECORD

                                                                  VOLUME 1 of 1

                                                Writ Number: C-213-010293-1011284-B

                                                Filed In the 213TH DISTRICT COURT
                                                      of Tarrant County, Texas
     Vot2£5fe&v                                Hon. LOUIS E. STURNS, Presiding Judge


                                            EX PARTE: RODNEY ELNESTO SMILEY


           '•••••
                                                                          vs.



                                                             THE STATE OF TEXAS

                                                        Appealed to the Courtof Criminal Appeals
                                                                    for the State Of Texas
                                                                                                                               FEB 17 2015
                                                                      at Capitol Station
                                                                      AUSTIN, TEXAS


                                                    ATTORNEY FOR THE APPELLANT

                                    KENNETH NASH, RETAINED
                                    STATE COUNSEL FOR OFFENDERS
                                    P.O. BOX 4005
                                    HUNTSVILLE, TEXAS 77342-4005
                                    PHONE:                    936-437-5203
                                    FAX:
                                    SBOT:                     14811030
                                    Attorney for RODNEY ELNESTO SMILEY,Appellant


                                                                                           (Court of CRIMINAL APPEALS)
Delivered to the Court of CriminalAppeals for the State Of
                                                                                           Cause No.
Texas At Capitol Station, AUSTIN, Texas, on the                                            Filed in the Court of CriminalAppeals for the State of Texas,
                                                                                           at CapitolStation, AUSTIN, Texas, this
JJ_ day of (eJbTsAAfiA.ZOlS7
                              tf
THOMAS A. WILDER, DISTRICT CLERK,
                                                                                                    .day of.
TARRANT COUNTY, FORTWORTH, TEXAS

                        CfaiiJ&j.                                                                              LOUISE PEARSON                    .Clerk




LAUREN RABY                                                                                By.                                                      Deputy


Deputy District Clerk
                                            INDEX
tl1111im)linillIMII1llirnrtr«l«^^            '"'''^''''^^'''llllllllllllllllllllllllllrfflnnfflllM^   ' 'II   '   'iMmVMI^fW™*MMVBmMM™IMW^M1,   ~*»m>mmi>nmmmimww^>«»r*iiimm?m»imm<t




Caption                                                                                                                                                                         1

Applicant's Response to The Affidavit of Charley Valdez                                                                                                                         2

Clerk's Certificate                                                                                                                                                         10
                                                    CAPTION




       THE STATE OF TEXAS


       COUNTY OF TARRANT




       At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOUIS E. STURNS
sitting as Judge of said court, the following proceedings were had, to-wit:




                                          Writ Number: C-213-010293-1011284-B



                                                          EX    PARTE:




                                                  RODNEY       ELNESTO   SMILEY



                                                               VS.



                                                  THE    STATE    OF   TEXAS




                                                                                                  1
                                                                               FILED


                      CAUSE NO. C-2130010293-1011284-B      PEBJ ° 20'5
                          CASE NO. WR-31,454-03        TIME   -^-3^
                                                                  BY          cXrrfr ncoiiTY
EXPARTE                                §      IN THE DISTRICT COURT

                                       §     213™ JUDICIAL DISTRICT

RODNEY ELNESTO SMILEY                  §     TARRANT COUNTY, TEXAS

                      APPLICANT'S RESPONSE TO THE
                     AFFIDAVITOF CHARLEY VALDEZ


TO THE HONORABLE JUDGE OF THIS COURT:

      Applicant, RODNEY ELNESTO SMILEY, makes the following response to

certain averments in the Affidavit ofCharley Valdez filed on January 26, 2015, as

follows:

      1. On November 26, 2014, the Court of Criminal Appeals instructed this

court to order the Texas Department of Criminal Justice's Office of the General

Counsel to file an affidavit

      listing Applicant's sentence begin date and his initial discretionary
      mandatory supervision eligibility and review dates. The affidavit
      should indicate whether Applicant's initial review date changed, and
      if so, why the date was changed and the new date for review. The
      affidavit shall also indicate the dates of any discretionary mandatory
      supervision votes.

Exparte Smiley, Case No. WR-31,454-003 {Per Curiam Order filed November 26,

2014). In compliance with the Court of Criminal Appeals' order, on December 11,

2014, this court ordered a representative from the Texas Department of Criminal

Justice (TDCJ) to answer seven questions. Exparte Smiley, Cause No. C-213-
010293-1011284-B (Memorandum and Order filed December 11, 2014). In his

affidavit, Valdez avers:

      Because an offender may not be released to mandatory supervision
      until eligible to be released on all mandatory eligible offenses, TDCJ
      calculates the projected mandatory release date on the controlling
       mandatory eligible offense; in this instance cause number F-9402594-
       U had a projected mandatory supervision date of 5-12-2013, and his
       DMS notice was based on this date. On 1-29-2013, Applicant was
       provided notice that he was being reviewed for DMS oncause number, Ti,.T
       1011284D, and that he had until 2-28-2013 to provide any
       information to the Board of Pardons and Paroles (BPP) regarding his
       release. On 4-10-2013, the BPP voted to deny release to DMS with a
       next review date of 04/2014.

       On 12-12-2013, Applicant was provided notice that he was being
       reviewed for DMS, and that he had until 1-11-2014 to provide any
       information to the BPP regarding his release. On 2-18-2014, the BPP
       voted to deny release to DMS with a nextreview date of 02/2015.

       On 10-14-2014, Applicant was provided notice that he was being for
       DMS, and that he had until 11-15-2014 to provide any information to
       the BPP regarding his release. On 12-15-2014, the BPP voted to deny
       release to DMS with a next review date of 12/2015.

Affidavit ofCharley Valdez at 3.1
       2. Valdez's affidavit clearly demonstrates the predicament that Applicant

and other similarly-situated inmates find themselves in due to a so-called policy or

rule in which the BPP and TDCJ's Pardons and Paroles Division refuse to release

an inmate (on mandatory mandatory supervision) until he is eligible for release on


1Valdez also averred that "Applicant's initial review date wasnot changed." Affidavit of
Charley Valdez at 3.
all of his sentences.2 Curiously, this policy or rule seems to affect only those

inmates (like Applicant) who were admitted to mandatory mandatory-supervision

release and thereafter committed a new discretionary mandatory-supervision

offense. Because he had not achieved his mandatory mandatory-supervision

release date of April 8,2014,3 on his old sentence, he remained incarcerated

despiteMving become eligible for discretionary mandatory-supervision release on

his new sentence back on September 21, 2010. See Applicationfor Writ ofHabeas

(Exhibit D). After a series ofnegative BPP votes, Applicant's projected release is
now scheduled for February 8, 2016, at whichtime he will have discharged his

discretionary mandatory-supervision sentence and must be released on his

mandatory mandatory-supervision sentence (for which he became originally

eligible back on April 13, 2013). See Applicationfor Writ ofHabeas Corpus

(Exhibit E-l).

       3. Given the way that the BPP has heretofore successfully enforced its so-

called policy or rule renders discretionary mandatory-supervision release an

illusory concept for inmates like Applicant. See Exparte Bohannan, 350 S.W.3d
116,120 (Tex. Crim. App. 2011) (admonishing TDCJ's Pardons and Paroles


2This same predicament is also presented inExparte Brandon, Case No. WR-81,846-02, also
pending before the Court of Criminal Appeals.

3Subsequently, Applicant was promoted in time-earning status and mandatory-supervision
releasedate on his old sentence was advanced to May 13,2013. SeeApplicationfor Writ of
Habeas Corpus at 8 (Exhibit E-l).
Division to obey the law); cf. Exparte Bohannan, 350 S.W.3d at 121 (Keasler, J.,

concurring).

      4. Wherefore, Applicant prays that this court enter appropriate findings of

fact and conclusions of law and recommend to the Court of Criminal Appeals that

the Application for Writ ofHabeas Corpus begranted, and that Applicant

immediately be released on discretionary mandatoryJsuperyision.__.

                                      Respectfully submitted,

                                      State Counsel for Offenders
                                      Attorney for Applicant


                                      Kenneth NaslT
                                      Texas Bar No. 14811030
                                      P.O. Box 4005
                                      Huntsville, TX 77342
                                      Telephone no. 936-437-5291
                                      Facsimile no. 936-437-5279
                                      E-mail address: Ken.Nash@tdci.texas.gov


                       CERTIFICATE OF COMPLIANCE

      In accordance with Rule 9.4(i)(3), Rules ofAppellate Procedure, I certify

that this computer-generated document is comprised of 773 words (excluding the

matters listed in Rule 9.4(i)(l)).

                                      fc*L^A*~ L
                                      Kenneth Nash
                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Applicant's Response

to the Affidavit ofCharley Valdez was served upon the attorney for the State,

Andrea Jacobs, at 401 West Belknap, Fort Worth, TX 76196, by first-class United

States mail on February L^> , 2015.
                                         J
                                       <^i^rM^yi^^_l\^_
                                      Kenneth Nash
                                                                                            FEB ! 0 2015
                                                                                    T1MF     v3' &fi
                                                                                    BY     ,*PT1?      DEPUTY
                       g>tate Counsel for ®ffenber£
                               3 JDititiion ofWexat Btpartment of CriminalJustitt

                                                P.O. Box 4005
                                        Huntsvillc,TX 77342-1005
                                             (936)437-5203
February 4,2015

Tarrant County District Clerk's Office
401W. Belknap             =.-J=a^=M=^..-_
Ft.Worth, Texas" 76196"

CERTIFIED MAIL RETURN RECEIPT REQUESTED #7012 1010 0002 5674 5203

Re:    The State ofTexas v. Rodney ElnestoSmiley
       Cause No. C-213-010293-1011284-B in the
      213th Judicial District Court ofTarrant County, Texas

Dear Sir or Madam:

      Enclosed, please find original and two copies of Applicant's Response to the
Affidavit of Charley Valdez.

       By copy of this letter, I am forwarding a copy of same to Ms. Andrea Jacobs,
attorney for the state. Please return a file-stamped copy ofthe memorandum to the
undersigned in the enclosed stamped envelope.

      Thank you for your courtesies regarding this matter. If there are any
questions, please contact undersigned counsel.

Sincerely,


Kenneth Nash
Appellate Section Chief
Phone: (936) 437-5291
Fax:(936)437-5295 . .
E-Mail Address: Kenneth.Nash@tdcj.texas.gov
Enclosures


cc:     Ms. Andrea Jacobs                  CMRRR #7012 1010 0002 5674 5210
        Deputy District Attorney
        Tim Curry Criminal Justice Center
        401 West Belknap
        Fort Worth, Texas 76196

cc:     Mr. Rodney Elnesto Smiley
        TDCJ# 00693698
        Estes Unit
      —1100 Highway 1807               '           --—....•.•.__..•
        Venus, Texas 76084




                                                                             8
     State Counsel for Offenders
     P.O. Box 4005
     Huntsville, TX 7.7342
     ' ATTN: Appellate Section
                                         7D12 1D1Q 0DD2 5b74 5203                                      &$M&

                                                                                                       ffiiSB !&:? ^007.6'/°



                                 '-&
                 ^      ;3


                                 FILED
                     TH«^c^^!TEarK                            Tarrant County District Clerk's Office
                                                              401W. Belknap
                             FEB 10 2015
                                                              Ft Worth, Texas    76196
                     TWE_
                     BY_                  .DEPUTY




CD
       Certified True Copy




      THE STATE OF TEXAS


      COUNTY OF TARRANT




       I, Thomas A. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certify that the above and
foregoing is a true and correct copy of ALL PROCEEDINGS HAD.



                                        In Writ Number:    C-213-010293-1011284-B




                                       EX PARTE: RODNEY ELNESTO SMILEY
                                                              VS.
                                                  THE STATE OF TEXAS




     as the same appears on the file and/or record in my said office.

     GIVEN UNDER MY HAND and seal of Said Court at office in the City of Fort Worth,
     Tarrant County, Texas, this the // ,day of ^JOTUOfU .A.D. ?J)lS .



                                          THOMAS A. WILDER
                                    CLERK, DISTRICT COURTS, TARRANT COUNTY, TEXAS




                              by rf\nM j 0si
                        Deputy




                                                                                                                 10
        APPENDIX C

3rd Supplemental Clerk’s Record
                                             •                  3rd SUPPLEMENTAL
                                                                                                          • 3/, 46'-/-                         0~

                                                              CLERK'S RECORD
                                                                     VOLUME 1 of 1

                                                  Writ Number: C-213-010293-1011284-B

                                                  Filed In the 213TH DISTRICT COURT
                                                           of Tarrant county, Texas         RECEIVED IN
                                                 Hon. LOUIS E. STURNS, Presiding Judge COURT OF CRIMINAL APPEALS

                                                                                                                              lFEB 26 2015
                                             EX PARTE: RODNEY ELNESTO SMILEY


                                                                            vs.

                                                              THE STATE OF TEXAS

                                                          Appealed to the Court of Criminal Appeals
                                                                      for the State OfTexas
                                                                        at Capitol Station
                                                                        AUSTIN, TEXAS


                                                      ATTORNEY FOR THE APPELLANT

                                     KENNETH NASH, RETAINED
                                     STATE COUNSEL FOR OFFENDERS
                                     P.O. BOX 4005
                                     HUNTSVILLE, TEXAS 77342~4005
                                     PHONE:            936 437-5203
                                     FAX:
                                     SBOT:             14811030
                                     Attorney for RODNEY ELNESTO SMILEY, Appellant


Delivered to the Court of Criminal Appeals for the State Of                                  (Court of CRIMINAL APPEALS)
Texas At Capitol Station, AUSTIN, Texas, on the                                              Cause N o . - - - - - - - - - - - - -
                                                                                             Filed in the Court of Criminal Appeals for the State of Texas,
.B._ day of ~//lA.1j                          2/!J J ~                                       at Capitol Station, AUSTIN, Texas, this


THOMAS A. WILDER, DISTRICT CLERK,
                                                                                             _ _ _ day of _ _ _ _ _ _ _ _, _ _ __
TArRANT CO        TY, ~EXAS
                                                                                             _ _ _ _ _..:.LO=U=I=SE=--'-'PE=A.!!.R=S=Oc:...:N_ _ __. Clerk



                                                                                             By _ _ _ _ _ _ _ _ _ _ _ _ _ _ , Deputy
                                                  •                    INDEX
                                                                                                               •
Caption ........................ ~ ................................................................................................................................1

State's Proposed Memorandum, Findings of Fact and Conclusions of Law ............................................. 2

Order ..........................................................................................................................................................9

Clerk's Certificate ......................................................................................................................................10
                                         CAPTION


     THE STATE OF TEXAS                            §

     COUNTY OF TARRANT                             §




        At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOUIS E. STURNS
sitting as Judge of said court, the following proceedings were had, to-wit:




                                  Writ Number: C-213-010293-1011284-B


                                              EX PARTE:


                                        RODNEY ELNESTO SMILEY

                                                  vs.

                                        THE STATE OF TEXAS




                                                                                               1
.   .. ,
       ..


                                  •
                                           NO. WR-31,454-03
                                       NO. C-213-010293-1011284-B

            EX PARTE                               §
                                                   §
                                                   §     ·DISTRICT COURT OF
                                                   §
            RODNEY ELNESTO SMILEY                  §     TARRANT COUNTY, TEXAS

                   STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT
                               AND CONCLUSIONS OF LAW
                  The State proposes the following Memorandum,· Findings of Fact and
            Conclusions of Law regarding the issues raised in the present Application for Writ of
            Habeas Corpus.


                                            MEMORANDUM

                  The applicant, RODNEY ELNESTO SMILEY ("Applicant"), alleges his

            confinement is illegal because (1) his right to due process was violated when the

            notice and vote of the Texas Department of Criminal Justice- Board of Pardons and

            Parole ("TDCJ") were made more than 2 years after he became eligible for

            mandatory supervision release and (2) his due course of law rights were violated

            when TDCJ's notice and vote were made more than 2 years after he became eligible

            for mandatory supervision. See Application, p. 6-9.

                  The Texas Court of Criminal Appeals. has remanded this application back for

            resolution of whether Applicant was denied due process by the late vote to deny him




                                                                                                    2
                       •                                     •
release to discretionary mandatory supervision. See Ex parte Smiley, No. WR-

31,454-03 (Tex; Crim. App. Nov. 26, 2014) (not designated for publication).

      In response to an order from this Court, Charley Valdez, Program Supervisor

III for the Classifications and Records Department of the Texas Department of

Criminal Justice- Correctional Institutions Division, has filed an affidavit addressing

Applicant's claims. In light of Applicant's contentions and the evidence presented in

the Writ Transcript,' the Court should consider the following proposed findings of

fact and conclusions of law:


                               FINDINGS OF FACT

General Facts

1.    Applicant pled guilty, pursuant to a plea agreement, to the third degree felony
      offense of injury to a child with intent to cause bodily injury. See Judgment,
      No. 1011284D.

2.    In accordance with the plea agreement, the State waived the habitual offender
      notice and the trial court sentenced him to ten years confinement in the Texas
      Department of Criminal Justice- Institutional Division. See Judgment.

3.    Applicant did not appeal his conviction. See Criminal Docket Sheet, No.
      1011284D.                         .

4.    Applicant's first application for writ of habeas corpus was dismissed for non-
      compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-
      213-010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for
      publication).




                                          2

                                                                                          3
                       •
"Late" Consideration for Mandatory Supervision

5.    Applicant's sentence date in this case, Cause Number 1011284D, was October
      26,2006 with pre-trial credit back to February 8, 2006. See Valdez Affidavit,
      p. 2.

6.    Applicant received a twenty-five year sentence in Cause Number F-9402594-
      PU O\lt of Dallas County on November 28, 1994, with credit back to June 28,
      1994. See Valdez Affidavit, p. 2.

7.    After revocation of parole in Cause Number F-9402594-PU on November 8,
      2006, Applicant forfeited four years, four months, and eight days of time. See
      Valdez Affidavit, p. 2.

8.    Applicant's maximum discharge date in Cause Number F-9402594-PU is
      November 4, 2023, twenty-nine years, four months, and eight days after June
      28, 1994. See Valdez Affidavit, p. 2.
                   I




9.    Based on Applicant's sentence and good time credits, Applicant was eligible
      for release to mandatory supervision on May 12, 2013, in Cause Number F-
      9402594-PU. See Valdez Affidavit, p. 3.

10.   Because an offender may not be released to mandatory supervision until
      eligible for release on all offenses, TDCJ did not calculate Applicant's
      mandatory supervision eligibility in this case separate from his eligibility in
      Cause Number F-9402594-PU as that offense was the controlling mandatory
      offense. See Valdez Affidavit, p. 3.

11.   It would be unreasonable that an offender is entitled to release to mandatory
      supervision if he is only eligible for release on one offense but not all offenses.

12.   It is unreasonable for TDCJ to consider an offender for release to     mandatory
      supervision on an offense if he is not eligible for release to         mandatory
      supervision on all offenses because, even if granted release to        mandatory
      supervision on one offense, Applicant will not be released to          mandatory
      supervision unless eligible for release on all offenses.

13.   Applicant was notified on January 29, 2013, that he would be reviewed for
      release to mandatory supervision and that he had until February 28, 2013, to
      provide any information in support ofhis release. See Valdez Affidavit, p. 3.

                                           3

                                                                                            4
.   '

                              •                                     •
        14.   On April 10, 2013, Applicant was denied release to mandatory supervision.
              See Valdez Affidavit, p. 3.

        15.   On December 12, 2013, Applicant was given notice that he would be
              considered for release to mandatory supervision and that he had until January
              11, 2014, to provide any information in support of his release. See Valdez
              Affidavit, p. 3.

        16.   On February 18, 2014, Applicant was denied release to mandatory
              supervision. See Valdez Affidavit, p. 3.

        17.   On October 14, 2014, Applicant was notified that he would be reviewed for
              release to mandatory supervision and that he had until November 15, 2014, to
              provide any information in support of his release. See Valdez Affidavit, p. 3. ·

        18.   On December 15, 2014, Applicant was denied release to mandatory
              supervision. See Valdez Affidavit, p. 3.

        19.   Applicant's next review date is December, 2015. See Valdez Affidavit, p. 3.

        20.   Applicant will currently discharge the sentence in this case on February 8;
              2016. See Valdez Affidavit, p. 2.


                                   CONCLUSIONS OF LAW

        General Writ Law

        1.    In a habeas corpus proceeding, the burden of proof is on the applicant. Ex
              parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must
              prove by a preponderance of the evidence that.the error contributed to his
              conviction or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex.
              Crim. App. 2001 ).                               ·

        2.    Relief may be denied if the applicant states· only conclusions, and not
                                                        1



              specific facts. Ex parte McPh,erson, 32 S.W.3d 8?0, 861 (Tex. Crim. App.
              2000). In addition, an applicant's sworn allegations alone are not sufficient
              to prove his claims: Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim.
              App. 1988).                                                                 .

                                                 4

                                                                                                 5
                      •                                     •
"Late" Consideration for Mandatory Supervision

3.    Applicant has failed to prove that he was eligible for release to mandatory
      supervision in this case prior to May 12, 2013.

4.    Applicant has failed to prove that his consideration for mandatory supervision
      in this case was late.

5.    An inmate has a constitutional due process right to 30 days' advance notice
      before being considered for release to mandatory supervision. Ex parte
      Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).

6.    Applicant received proper notice before he was considered for release to
      mandatory supervision.

7.    Applicant has failed to prove that he was denied due process when TDCJ
      reviewed him for release to mandatory supervision in 2013.

8.    This Court recommends that Applicant's first ground for relief be DENIED.

9.    Applicant has failed to prove that he was eligible for release to mandatory
      supervision in this case prior to May 12, 2013.

10.   Applicant has failed to prove that his consideration for mandatory supervision
      in this case was late.

11.   An inmate has a constitutional due process right to 30 days' advance notice
      before being considered for release to mandatory superv1s1on. Ex parte
      Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).

12.   Applicant received proper notice before he was considered for release to
      mandatory supervision.

13.   Applicant has failed to prove that he was denied course of law when TDCJ
      reviewed him for release to mandatory supervision in 20 13.

14.   This Court recommends that Applicant's second ground for relief be
      DENIED.




                                         5
                                                                                       6
                       •                                       •
        WHEREFORE, the State prays that this Court adopt these Proposed Findings

of Fact and Conclusions of Law and recommend that Applicant's grounds for relief

be DENIED ..

                                               Respectfully submitted,

                                               SHAREN WILSON
                                               Criminal District Attorney
                                               Tarrant County
                                              ·~
                                              · Andrea Jacobs
                                                Assistant Criminal District Attorney
                                                State Bar No. 24037596
                                                401 West Belknap
                                                Fort Worth, TX 76196-0201
                                                Ph.one:      817/884-1687
                                                Facsimile: 817/884-1672

                           CERTIFICATE OF SERVICE
        A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto ·
Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel
for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on the 18TH day of February,
2015.

                                               Andrea Jacobs

                        CERTIFICATE OF COMPLIANCE

        I certify that the total number of words in ·this State's Memorandum, Proposed

Findings of Fact and Conclusions of Law is 1528 words as determined by Microsoft

Office Word 2013.
                                                r----···
                                              Andrea Jacobs .


                                          6

                                                                                         7
                       •                                     •
                               NO. WR-31,454-03
                           NO. C-213-010293-1011284-B

EX PARTE                                   §       IN mE 213th JUDICIAL
                                           §
                                           §       DISTRICT COURT OF
                                           §
RODNEYELNESTOSN.ULEY                       §       TARRANT COUNTY, TEXAS

                                       ORDER
       The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests should be DENIED. The Court further orders and directs:
       1.    The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.
       2.    The Clerk of this Court to furnish .a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas ·
77342 (or to Applicant's most recent address), and to the post-conviction section of
the Criminal District Attorney's Office.


SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _, 2015.



                                                       JUDGE PRESIDING




                                               1
                                                                                        8
                       ••                                         •                  FILED
                                                                          THOMAS A WILDER, DIST. CLERK
                                                                          · TARRANT COUNTY. TEXAS

                                                                                  FEB 24 2015
                               NO. WR-31,454-03
                           NO. C-213-010293-1011284-B                     TIME       '   I ;d., Lp
                                                                          BV ___~~:;:::::::e:::...J DEPUTY
EX PARTE                                   §     IN THE 213th JUDICIAL
                                           §
                                           §    DISTRICT COURT OF
                                           §
RODNEY ELNESTO SMILEY                      §    TARRANT COUNTY, TEXAS

                                       ORDER
                                  '
       The Court adopts the State's Memorandum, Findings ofF act and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests should be DENIED. The Court further orders and directs:
       1.    The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.
       2.    The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas
77342 (or to Applicant's most recent address), and to the post-conviction section of
the Criminal District Attorney's Office.


SIGNED AND ENTERED this         __2_±_ day of:E_.J.-Q..-~b=--.~1~-.-   _ __ : ,   2015.




                                                                                                     ,9
       Certified True Copy




       THE STATE OF TEXAS                                       §

       COUNTY OF TARRANT                                        §



        I, Thomas A. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certify that the above and
foregoing is a true and correct copy of ALL PROCEEDINGS HAD.



                                         In Writ Number: C-213-010293-1011284-B



                                        EX PARTE: RODNEY ELNESTO SMILEY
                                                              vs.
                                                   THE STATE OF TEXAS



      as the same appears on the file and/or record in my said office.

     GNEN UNDER MY HAND and seal of Said Court at office in the City of Fort Worth,
     Tarrant County, Texas, this the   2!1.._, day of~, A.D. ~) S



                                     CLERK, DISTRICT COURTS, TARRANT COUNTY, TEXAS
                                                                    ::-·   .   ·-




                                                                                                              10
APPENDIX D

Clerk’s Record
.... --··

       RECE~VED ~N
                                             •    _,,

                                                   ~}
                                                        :•: ...
                                                         ..                         '•
                                                                                                                  • -   <




    CO\JRT OF CR\M\NAL APPEALS
              SEP 25 2014                                          CLERK'S RECORD
          Abel Acosta, Clerk                                                 VOLUME 1 of 1

                                                   Writ Number: C-213-010293-1011284-B

                                                  Filed In the 213TH DISTRICT COURT
                                                           of Tarrant County, Texas
                                                 Hon. LOUIS E. STURNS, Presiding Judge


                                             EX PARTE: RODNEY ELNESTO SMILEY


                                                                                    vs.

                                                                     THE STATE OF TEXAS

                                                                  Appealed to the Court of Criminal Appeals
                                                                              for the State Of Texas
                                                                                at Capitol Station
                                                                                AUSTIN, TEXAS


                                                         ATIORNEY FOR THE APPELLANT

                                     KENNETH NASH, RET AI NED
                                     STATE COUNSEL FOR OFFENDERS
                                     P.O. BOX 4005
                                     HUNTSVILLE, TEXAS 77342-4005
                                     PHONE:            (936) 437-5203
                                     FAX:
                                     SBOT:             14811030
                                     Attorney for RODNEY ELNESTO SMILEY, Appellant


Delivered to the Court of Criminal Appeals for the State Of                                          (Court of CRIMINAL APPEALS)
Texas At Capitol Station, AUSTIN, Texas, on the                                                      Cause N o < - - - : - - - - - : - - - - - - : - : = - - -
                                                                                                     Filed in the Court of Criminal Appeals for the State of Texas,
_2:!L dayof~/Py, ~)tf                                                                                at Capitol Station, AUSTIN, Texas, this



                                                                                                     _ _ _ day of _ _ _ _ _ _ _ _ _ _ __

                                                                                                     _ _ _ ___,L,_,O=U=IS'-'=E'-'-P-'=EA'-"R_,S=O=N,___ __.. Clerk



                                                                                                     By _ _ _ _ _ _ _ _ _ _ _ _ _ , Deputy

Deputy District Clerk
                    •  Application for Writ of Habeas Corpus
                           from Tarrant County, Texas


                           213TH DISTRICT COURT
                                  Ex Parte:
                          RODNEY ELNESTO SMILEY

                       WRIT NO. C-213-010293-1011284-B


                       CLERK'S SUMMARY SHEET


APPLICANT'S NAME:         RODNEY ELNESTO SMILEY

OFFENSE:                  INJ CHILD/ELD/DISABL-BI

PLEA:                     GUlL TY

CAUSE NO:                 1011284D

SENTENCE:                 10 YEARS IDTDCJ

SENTENCE DATE:            10/26/2006

TRIAL JUDGE'S NAME:       HONORABLE ROBERT GILL

APPEAL NO:                NONE

CITATION TO OPINION:      N/A   S.W. N/A

HEARING HELD:             NO

FINDINGS & CONCLUSIONS FILED:           YES

RECOMMENDATION:           DISMISS AS MOOT

HABEAS JUDGE'S NAME:      HONORABLE LOUIS E STURNS

NAME OF COUNSEL IF APPLICANT IS REPRESENTED: KENNETH NASH
                                              •                      INDEX
                                                                                                         •
Caption ....................................................................................................................................................... 1

Application for Writ of Habeas Corpus ....................................................................................................... 2

Waiver of Service .....................................................................................................................................52

State's Response to Application for Writ of Habeas Corpus ................................................................... 53

State's Proposed Memorandum, Findings of Fact and Conclusions of Law ........................................... 60

Order .......................................................................................................................................................65

Clerk's Certificate ......................................................................................................................................66
                                          ce
                                                         CAPTION


            THE STATE OF TEXAS                                       §

            COUNTY OF TARRANT                                        §




            At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOlliS E. STURNS
     sitting as Judge of said court, the following proceedings were had, to-wit:



I(
 \




                                               Writ Number: C-213-010293-1011284-B


                                                               EX PARTE:


                                                       RODNEY ELNESTO SMILEY

                                                                   vs.

                                                        THE STATE OF TEXAS




                                                                                                    1
                                                                           (.                         FILED
                                                                            \...      -~~M~~RK.
                                                                                                 AUG 25 2014
                                   Case No.                                       TIME             /:4~1;;
                       (The Clerk of the convicting court will fill thi~ yne in.) sv_·:.:.::_:-:-:,B~.~-:?g~:::-0-EP-UlY--..
                      C,- ·~ \y 0lD 213- ID)J·zBci- ·- F3
                    IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                                             .                              .
                   APPLICATION FOR A WRIT OF HABEAS CORPUS
                 SEEKING RELIEF FROM FINAL FELONY CONVICTION
                UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


NAME: Rodney Elnesto Smiley

DATEOFBIRTH: _fu~ly~12~,_1_96_4__________________________~----------

PLACE OF CONFINEMENT: Sanders "Sandy" Estes Unit (TDCJ)

TDCJ-CID NUMBER: _00_6_93_6_9_8 --------- SID NUMBER: _03_3_6_12_0_5_ _ _ __

(1)     This   applicatio~    concerns (check all that ~pply):

        D      a conviction                      D        · parole

        D      a sentence                        0         mandatory supervision

        D      time credit                       D         out-of-time appeal or petition for
                                                           discretionary review


(2) .   What district court entered the judgment of the conviction you want relief from?
        (Include the court number and county.)

        213th District Court ofTanant County, Texas


(3)     What was the case number in the trial court?

        1011284D


(4)     What was the name of the trial judge?

        Robert K. Gill




Effective: January 1, 2014                            1
                                                                                                                       2
                          (-·
(5) ·    Were you represented by counsel? If yes, provide the attorney's name:

         Yes; Joetta Keene



(6)      What was the date that the judgment was entered?

         October 26, 2006



(7)      For what offense were you convicted and what was the sentence?

         Injmy to a Child; 10 years' confinement in Institutional Division, TDCJ

(8)     · If you were sentenced on ·more than one count of an indictment in the same court ,at
          the same time, what counts were you convicted of and what was the sentence in each
          count?




(9)      What was the plea you entered? (Check one.)

             D guilty:-open plea             IV Iguilty..:plea bargain
             D not guilty ·                  D nolo conte1idere/no. contest
         If you entered different pleas to counts in a multi-count indictment, please explain:




(10)     What kind of trial did you have?

             0nojury
                                            B    jury for guilt and punishment
                                                 jury for guilt~ judge for punishment




                                                2
                                                                                                 3
I
I


     (11)    Did you testify at trial? If yes, at what phase of the trial did you testify?




     (12)    Did you appeal from the judgment of conviction?

                                                 ~no
              .                          .
             If you did appeal, answer the following questions:

             (A) What court of appeals did you appeal to?

             (B) What was the case number?

             (C) Were you represented by counsel on appeal? If yes, provide the-attorney's
                 name:



             (D) What was the decision and the date of the decision?

    _ (13)   Did you file a petition for discretionary review in the Court of Criminal Appeals?

             Dyes

             If you did file a petition for discretionary review, answer the following q:nestions:

             (A) What was the case number?

             (B) What was the decision and the date of the decision?


     (14)    Have you previously filed an application for a writ of habeas corpus under Article
             11.07 of the Texas Code of Criminal Procedure challenging this conviction?

             ~yes                                 Ono

             lfyou answered yes, answer the following questions:
                                                                                 WR-454-02-
             (A) What was the Courf of Criminal Appeals' writ number?




                                                      3 -                                            4
                         .c.                                      ce
                                                                     Dismissed; August 6, 2014
        (B) Whatwasthedecision and the date ofthe decision?

        (C) Please identify the reason that the current claims were not presented and could
            not have been presen~ed on your previous application.




(15)    Do you currently have any petition or appeal pending in any other state or federal
        court?

       ~yes                               'Ono··

        If you answered yes, please provide the name of the court and the case number:

        291st District Court ofDallas County, Texas; Cause No. W94-02594-U(B)


(16)   If you are presentinga claim for time credit, have you exhausted your
        administrative remedies by presenting your claim to the time. credit-resolution
        system of the Texas Department of Criminal Justice? (This requirement applies to
        any finaf felony conviction, including state jail felonies) ·

                                           Ono

       If you answered yes, answer the following questions: .

       · (A) What date did you present the claim?

        (B) Did you receive a decision and, if yes, what was the date of' the decision?




       If you answered no, please explain why you have not submitted your claim:




                                               4
                                                                                                 5
                       ce                                        ce
               Not applicable, see Ex parte Long, No. WR-64,125-01, 2006 Tex. Crim. App.


               Uni:mb. LEXIS 515 at *1-2 (per curiam order delivered March 8, 2006).


               Moreover, Applicant is excused from the exhaustion requirement by   Sec~



               501.0081(c), Government Code.




(17)     Beginning on page 6, state concisely every legal ground for your claim that you are
         being unlawfully restrained, and then briefly summarize the facts supporting each
       . ground. You must present each ground on the form application and a brief
         summary.ofthe.facts. lfyour groUJ~ds and briefsumma~y of~hefacts have not been
        presented Oil the fomi application, the f;ourt Wi/lnot consider you_r groUTlifS.
         Ifyou have more than four grounds, use pages 14 and 15 of the form, which you
         m~y copy as many times as needed to give you a separate page for each ground, with
         ~ach ground numbered i~ sequence. tile recitatio~ of the facts supporting e~ch
         ground must be no longer than the two pages provided for the ground in the form.

       You may include with the form a memorandum of law if you want to present legal
       authorities, but the Court will not consider grounds for relief set out in a
       ~emorandum of hiw that -yvere not raised on the for:m. The citations imd arg~ment
       must be in a memorandum that compli~s with Texas Rule· of Appellate Procedure 73 .
       and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
       are challenging the validity of your conviction, please include a summary of the facts
       pertaining to your offense and trial in your memorandum.




                                               5                                                6
                       ce
GROUND ONE:
Applicant's right of due process was violated when TDCJ's notice was given and BPP's vote


was taken more than 2 years after Applicant became eligible for mandatory supervision release.

FACTS SUPPORTING GROUND ONE:
·On November 28, 1994, Applicant was convicted ofthe offense of Theft ofProperty and


sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. On August 30, 2001,


Applicant was released from custody on parole supervision. See Exhibit B-4. On October 26,


2006 (and while on parole supervision), Applicant was convicted of the offense oflnjury to a


Child and sentenced to 10 years' confmement in TDCJ-ID. See Exhibit C. On Nove~ber 8,


2006, the Board of Pardons and Parole (BPP) revoked Applicant's parole. See Exhibit B-3. On


December 7, 2006, TDCJ-ID determined Applicant's mandatory supervision release date on his


old sentence as April 8, 2014 and his (discretionary) mandatory supervision release date on his


 new sentence as September 21, 2010. See Exhibit D. Subsequently, Applicant was promoted in


time-earning status and his mandatory supervision release date on his old sentence was advanced


to May 13, 2013. See Exhibit E-1. According to a document entitled NDMS Information dated


January 14, 2013, well after Applicant achieved his eligibility for release on (discretionary)


mandatory supervision, TDCJ notified Applicant that he would be reviewed for (discretionary)




                                                 6

                                                                                                  7
                        ce
mandatory supervision release. See Exhibits F and B-1. On April10, 2013, a BPP parole


panel issued its decision to deny mandatory supervision release (DMS). See Exhibits G and B-1.


TDCJ re-established Applicant's (discretionary) mandatory supervision release date on his new


sentence as February 8, 2016. See Exhibit E-1.


According to TDCJ's original calculations, Applicant would have become eligible for


(discretionary) mandatory supervision release on his new sentence on September 21,2010. See


Exhibit D. However,'TDCJ and BPP delayed more than
                                               . 2 years before.taki'ng any
                                                                         . action. See

Exhibit R-1. Applicant should be immediately relea~ed on mandatory supervision on his new


sentence.




                                                 7                                               8
                                                                             ce.
       GROUND TWO:
       Applicant's due-course-of-law-rights were violated when TDCJ's notice was given and BPP's


       vote' was taken more than 2 yeai·s after Applicant became eligible for mandatmy supei-vision.

       FACTS SUPPORTING GROUND TWO:
       On November 28, 1994, Applicant was convicted of the offense of Theft of Property and


       sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. On August 30, 2001,


       Applicant was released from custody on parole supervision. See Exhibit B-4. On October 26,


       2006 (and while on parole supervision), Applicant was convicted of the offense oflnjury to a


       Child and sentenced to 10 years' confinement inTDCJ-ID. See Exhibit C. On.November 8, ·


       2006, the Board ofP~donsand Parole (BPP) reyoked Applicant's parole. See Exhibit B-3. On


       December 7, 2006, TDCJ-ID determined Applicant's mandatory supervision rekase date on his

                 .                            .                          .
       ol4 sentence as April '8, 2014 ~hd his (discretionary) ma~datory supervision·.release date on his


        new sentence as September 21, 2010. See Exhibit D. Subsequently, Applicant was promoted in


       time-earning ·status and his mandatory supervision release date on his old senten~e was advanced

ilil
       to May 13, 2013. See Exhibit E-1. According to a document entitled NDMS Information dated


       January 14, 201:3, well after Applicant achieved his eligibility for release on (discretionary)


       mandatory supervision, TDCJ notified Applicant that he would be reviewed for (discretionary)




                                                         8
                                                                                                           9
                       re.                                       ce
mandatory supervision release. See Exhibits F and B-1. On April10, 2013, a BPP parole panel


issued its decision to deny mandatory supervision release (DMS). See Exhibits G and B-1.


TDCJ re-established Applicant's (discretiomny) mandatmy supervision release date on his new


sentence as Feoruary 8, 2016. See Exhibit E-1.


According to TDCJ's original calculations, Applicant would have become eligible for


(discretionary) mandatory supervision release on his new sentence on September 21, 2010. See


Exhibit D. However, TDCJ and BPP delayed more than 2 years before taking any action. See


· Exhibit B-1. Applicant should be immediately releas·ed on mandatory supervision on his new


sentence.




                                                 9

                                                                                               10
GROUND THREE:




FACTS SUPPORTING GROUND THREE:




                                 10
                                      11
.   (.




         11.   12
GROUND FOUR:




FACTS SUPPORTING GROUND FOUR:




                                12
                                     13
ce        .c.




     13
                14
     GROUND:




     FACTS SUPPORTING GROUND:.




                                 14
                                      15
 '
il
ce




     15   .16
    WHEREFORE, APPLICANT PRAYS THAT THE C.OURT GRANT APPLICANT
      RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

                                                    VERIFICATION

              This application must be verified or it will be dismissed for non-compliance. For
verification purposes, an applicant is a person filing the application on his or her own behalf. A
petitioner is a person fiiing the application on behalf of an applicant, for example, an applicant's
attorney. An inmate is a person who is in custody.

             The inmate applicant must sign either the "Oath Before a Notary Public" before a
notary public or the "Inmate's Declaration" without a notary public. If the i:rimate is represented
by a licensed attorney, the attorney may sign the "Oath B~fore a Notary Public" as petitioner and
then complete "Petitioner's Information." A non-inmate applicant must sign the "Oath Before a
Notary Public" before a notary public unless he is represented by a licensed attorney, in which
case the attorney may sign the verification as petitioner.

             A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public"
before a notary public and must also complete "Petitioner's Information." An inmate petitioner
must sign either the "Oath Before a Notary Public" before a notary· public or the "Inmate's
                                a
Declaration" without notary public and must also· complete the appropriate ''Petitioner's
Information."

             OATH BEFORE A NOTARY PUBLIC

             STATE OF TEXAS

             COUNTY OF Walker
                                     -------
             Kenneth Nash                   .      ·    , being duly sworn, under oath says: "I am
the applicant /~titio:ii.¢(circle one) in this action and know the contents of the above
                 a
application for writ of habeas corpus and, according to my beiief, the facts stated in the ·
application are true."




                                                                   Lo4>
SUBSCRJBED AND SWORN TO BEFORE ME THIS~ DAY OF August                                        , 2014


              .4~!:.~~!':.:.\
              ~~y...A:;_···~
              \~.~··. ~ . .{J
                             \
                                    LISA MARIE ~OSS
                                       Notary Pu•hc
                                     STATE OF TEXAS
                                                                     d;~iYhA~dlliro
                                                                     Signature of Notary Public
               '··~~:!i~.~···    My Comm. Exp. May 20, 2017




                                                              16
                                                                                                       17
        PETITIONER'S INFORMA TJON

        Petitioner's printed name:_K_e_nn_e_th_N_a_sh_ _ _ _ _ _ _ _ __

        State bar number, if applicable: _1_4_8_11_0_3_0_ _ _ _ _ _ _ __

        Address:    State Counsel for Offenders

                    P.O. Box 4005

                    Huntsville, TX 77342

       Telephone: (936) 437-5291

       Fax: (936) 437-5279


       INMATE'S DECLARATION

                                                            .                           .
       I, - - - - - - - - - : - - - - - - - ' am the applicant/ petitioner (circle m~e) and

being presently incarcerated in _ _ _ _ _ _ _ _ _ _ _ _ _· _, declare urider penalty of

perjury that, according to my belief, the facts stated in the above application are true and correct.


                                                       Signed on---.,..-------' 20__·_.



                                                       Signature of Applicant I Petitioner (circle one)




                                                  17
                                                                                                          18
      PETITIONER'S INFORMATION
         ..     ,    . d       Kenneth Nash
      Pettt10ner s pnnte name: -----'-·- - - - - - - - - - ' - - - -
     . Address: State Counsel for Offenders

                P.O. Box 4005

                HUn.tsville, TX 77342

               (936) 437-5291
      T eep
         I h one:-----~--------------

      Fax: (936) 437-5279


                                                                  'Z-0
                                                   Signed on August yf               ,20~.




                                                                    .    Signature ofPetitioner .




:I
I




                                              18
                                                                                                    19
                                                                    ce                      FILED
                                                                               TH9.~',~;f,{Nr~8fi~~RK
                                                                                         AUG 25 201~
                    Case No. - - - - - - - - - - - - - - - - - - = T I M E                 Dlf_t0
                                                                                BY           ~       . DEPUlY .
Ex parte                                                      In the 213th Judicial

                                                              District Court of

Rodney Elnesto Smiley,                                        Tarrant County, Texas
     Applicant

                              Memorandum in Support of
                        Application for a Writ of Habeas Corpus

       Pursuant to Rule 73.1 (c), Rules of Appellate Procedure, Rodney Elnesto

Smiley (hereinafter "Applicant"), files this memorandum in support of his

application for a writ of habeas corpus, as follows:

                                               Facts

       On November 28, 1994, Applicant was convicted of the offense of Theft of

Property and sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. 1

On August 30, 2001, Applicant was released from custody on parole supervision.

See Exhibit B-4. On October 26, 2006, and while on parole supervision, Applicant

was convicted of the offense of Injury to a Child and sentenced to 10 years'

confinement in the TDCJ-ID. See Exhibit C. On November 8, 2006, the Board of

Pardons and Paroles (BPP) revoked Applicant's parole. See Exhibit B-3. On

December 7, 2006, the TDCJ determined Applicant's mandatory-supervision


1
 All references to exhibits herein are to those exhibits attached to the application for a writ of
habeas corpus.



                                                                                                      20
                              ce                                  .•
                                                                 (.-   .




         release date on his old sentence as April 8, 2014, and his discretionary mandatory-

         supervision release date on his new sentence as September 21, 2010. See Exhibit

         D. Subsequently, Applicant was promoted in time-earning status, and his

         mandatory-supervision release date on his old sentence was advanced to May 13,

         2013. See Exhibit E-1. On January 14, 2013, the TDCJ notified Applicant that he

         would be reviewed for discretionary mandatory-supervision release. See Exhibit F

         and B-1. On April10, 2013, a parole panel of the BPP issued its decision to deny

         discretionary mandatory-supervision release (DMS). See Exhibits G and B-1. The

         TDCJ re-established Applicant's discretionary mandatory-supervision release date

         on his new sentence as February 8, 2016. See Exhibit E-1.

                                                Issues

                1. Did the Texas Department of Criminal Justice and the Board ofPardons

         and Paroles violate Applicant's right of due process because the TDCJ's notice

         was given, and the BPP's vote was taken, more than 2 years after Applicant

         became eligible for .discretionary mandatory-supervision release on his new

         sentence?

               2. Did the Texas Department of Criminal Justice and theBoard ofPardons
    I

I
    i    and Paroles violate Applicant's right of due course because the TDCJ' s notice was

         given, and the BPP's vote was taken, more than 2 years after Applicant became

        . eligible for discretionary mandatory-supervision release on his new sentence?



                                                  2                                            21
                                          Argument

       As a preliminary matter, habeas-corpus claims alleging illegal confinement

arising after a felony conviction, but not contesting the validity of the judgments,

may be raised under Art. 11.07, Code of Criminal Procedure. Ex parte Geiken, 28

S.W.3d 553, 556 (Tex. Crim. App. 2000).

       An inmate has a constitutional due-process right to 30 days' advance notice

. of the specific month.and year in which he will be reviewed for release on

mandatory supervision so that he has sufficient opportunity to submit materials on

his behalf. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding

that notice to an inmate that he will be reviewed for mandatory-supervision release

at some unspecified time before his projected release date does not constitute

timely notice consistent with due process)? See also Ex parte Shook, 59 S.W.3d

174 (Tex. Crim. App. 2001); and Ex parte Barry, 109 S.W.3d 510 (Tex. Crim.

App. 2003). An inmate, however, may not be released on discretionary mandatory

supervision if a parole panel determines that: ( 1) his accrued good conduct time is

not an accurate reflection of his potential for rehabilitation; and (2) his release

would endanger the public. Section 508.149(b), Government Code.
                                                                                           /
       [T]he onus is on a parole panel to invoke the review process and make
       its findings, not on the eligible inmate to request a review. Without a

2
 The Court of Criminal Appeals has interpreted the due-course-of-law provision to provide the
same procedural rights and protections as its federal analog. Fleming v. State, 341 S.W.3d 415,
416 (Tex. Crim. App. 2011) (Keasler, J., concurring).


                                                3                                                 22
                                                                      ce
            parole panel's two statutory findings, made only after timely due
            process notice to the inmate giving him an opportunity to submit
            materials, the Texas Department of Criminal Justice-CID must release
            an eligible inmate to mandatory supervision.

     Ex parte Retzlaff, 135 S.W.3d at 51. Accord Ex parte Hill, 208 S.W.3d 462, 464

     (Tex. Crim. App. 2006).

            As stated above, the TDCJ's notice and the BPP's vote (to deny mandatory-

     supervision release) occurred more than 2 years after Applicant's original

     discretionary mandatory-supervision release date of September 21, 2010; therefore,

     mandatory-supervision review process was untimely. Hence, Applicant is entitled

     to immediate release on mandatory supervision. 3

                                                 Prayer

            Wherefore, Applicant prays that the Court of Criminal Appeals grant his

     application for a writ of habeas corpus and order the Texas Department of Criminal

     Justice and the Board of Pardons and Paroles to immediately release him on

     mandatory supervision from the sentence imposed in Cause No. 1011284D for the

     felony offense of Injury to a Child.




     3
      Applicant's case is distinguishable from Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App.
     2008) ~herein the Court of Crim.inal Appeals resolved the ."complex problem" involying a
     sentence ineligible for mandatory-supervision release stacked upon a sentence eligible for
     mandatory-supervision release.. In contrast, Applicant's old sentences and his new sentence are
     all eligible for mandatory-supervision release.·



                                                     4                                                 23
'I
                                                        ce
                                      Respectfully submitted,

                                      State Counsel for Offenders
                                      Attorney for Applicant

                                      /~,il~~
                                      Kenneth Nash        ·
                                      Texas BarNo. 14811030
                                      P. 0. Box 4005
                                      Huntsville, TX 77342
                                      Telephone no. 936-437-5291
                                      Facsimile no. 936-437-5279
                                      E-:-mail address: ken.nash@tdcj.texas.gov

                           Certificate of Compliance

      In compliance with Rule 73.1(f), Rules of Appellate Procedure, I certify that

the foregoing computer-generated Memorandum in Support ofApplication for a

Writ ofHabeas Corpus is comprised of 83 7 words.


                                      Kenneth Nash

                              Certificate of Service

      I certify that a true and correct copy of the foregoing Memorandum in

Support ofApplication for a Writ ofHabeas Corpus was served upon opposing

counsel noted below by first-class United States mail on August~, 2014:

Joe Shannon, Jr.
Tarrant County Criminal District Attorney
Tim Curry Criminal Justice Center
401 West Belknap
Fort Worth, TX 76196

                                      Kenneth Nash


                                         5                                            24
             -····
            (F\EV ..      10/·16/91)


         TH2 STATE OF TEXAS
                                                              F-9402594-PU        ce
                                                                                IN THE 291ST JUDICIAL DISTRICT
         \.JS.                                                                  COURT                           OF
        RODNEY ELNESTO SMILEY                                                   DALLAS COUNTY, TEXAS



                          /
                         11
                              ~UDGI_'1ENT   ON PLEA OF GUILTY OR NOLO CONTENDERE BEFORE COURT
                     ~
                     ...,                            WAIVER OF JURY TRIAL .

                                                                                   JULY        TERM 7 A.D.? 1994
        JUDGE PRESIDING:                 GERRY MEIER                               DATE OF JUDGMENT: 11/28/94

        ATTORNEY                                                     ATTORNEY
        FOR STATE:               B COX                               FOR DEFENDANT: RICK MAGNIS

        OFFENSE
        CONVICTED OF:                       AHEFT OF PROPERTY OF THE VALUE OF $750 OR MORE, BUT LESS
                                              THAN $20~000
                                                                                           i

               DEGREE: THIRD                            <ENHANCED>       DATE OFFENSE   CO~TTED:     02/08/94
\       --------------------------------------------------------------------------------------
        CHARGING
        I NSTRUI'1ENT:           INDICTMENT                             PLEA: GUILTY

        TERI'1S OF PLEA
        BARGAIN <IN DETAIL)·:                 :OPEN

        =·LEA TO ENHANCEMENT                                            FINDINGS ON
        =·ARAGRAPH ( S) : PLED TRUE TO 2ND&3RD                          ENHANCEMENT: FOUND


        =-INDINGS ON USE
        JF DEADLY WEAPON:                        NONE


        )ATE SENTENCE       /.·
        [ MPOSED :    .____/                 11 /2f.: /94

        =-UN I SHMENT AND
        =-LACE OF               .·  25 YEARS
        :ot-JF I !\IEM!='Il.Pl"": CONF I NEM'ENT IN THE I NST I TUT I ONAL DIVIS I ON
                     ~-· ·oF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE                                  11/28/94
                                . AND A FINE OF -.Q-
    I   ----------------------------------------------------~------------------~-r----------
1\ 'If1E CREDIT_!;:D:               062894--112::::94
'I                       /
        --------------------------------------------------------------------------~----------
1       :ON CURRENT UNLESS OTHERWISE SPECIFIED.


              ON THIS. DAY, SET FORTH ABOVE THE ABOVE. STYLED AND NUMBERE:;:D CAUSE CAME
        0  TRIAL. THE STAlE OF TEXAS AND DEFENDANT APPEARED BY AND THROUGH THE ABOVE
        AMED ATTORNEYS AND ANNOUNCED READY FOR TRIAL.   DEFENDANT APPEARED IN PERSON IN
        H                                                                                 VOL. 198   PAGE 187
                                                                EXHIBIT

                                                                     A                                     25
.OPE;N COLJF:T ~          ~·JHERE    DEr(l····NT WAS NOT F:EF'RESENTE(·-···X    COUNSEL   DEFENDAI'H
 f:J\.JO!tJI Ni;JL Y. I NTEL.L I GENTLY .     D VOLUNTARILY t.<JA I VED TH   HT TO HEF'F~ESENTAT InN
 BY COUNSEl. DEFENDANT, t~·r RSON AND .IN W~ITING IN 0~~ COORT HAVING WAIVED' HiS·
 F\IGHT OF TRIAL BY JURY, At-..ID WHEF:E SHOvJN ABOVE THAT THE CHARGING INSTRUMENT vJAS
 BY INFORMATION INSTEAD OF INDICTMENT~ THE DEFENDANT DID,                      WITH THE CONSENT AND
 APPROVAL~F HIS ATTORNEY, OF THE ATTuRNEY FOR THE STATE,                      AND THE COURT. WAIVE
 HIS RIGHT TO F'FWSECUTION BY INDICTt'iENT ··AND AGF:EE TO BE TRIED ON AN AFi="IDAVIT
 AND INFORMATION; ALL SUCH WAIVERS, AGREEMENTS AND CONSENTS BEING IN WRITING AND
FILED IN THE F'Ar'ERS OF THIS CAUSE PRIOF: TO THE DEFENDANT ENTERING                       HIS PLEA
 HEREIN, WAS DULY ARRAIGNED AND IN OPEN COURT ENTERED THE ABOVE PLEA TO THE
CHARGE CONTAINED IN THE CHARGING INSTRUMENT~ AS SHOWN ABOVE.                         DEFENDANT WAS
ADMONISHED BY THE COURT OF THE CONSEQUENCES OF THE SAID PLEA AND DEFENDANT
PERSISTED IN ENTERING SAID PLEA, AND IT PLAINLY APPEARING TO THE COURT THAT
DEFENDANT IS MENTALLY COMPETENT AND SAID PLEA IS FREE AND VOLUNTARY THE SAID
PLEA WAS ACCEPTED BY THE COURT AND IS NOW ENTERED OF RECORD AS THE PLEA HEREIN
OF DEFENDANT. DEFENDANT IN OPEN COURT~ IN WRITING HAVING WAIVED THE READING OF
THE CHARGING INSTHUMENT                   AS SHOWN ABuVE    THE APPEARANCE, CONFRONTATION       AND
CROSS-EXAMINATION OF WitNESSES! AND AGREED THAT THE EVIDENCE MAY BE STIPOLATED
AND CONSENTED TO THE INTRODUCT ON OF TESTIMONY ORALLY, BY ~UDICIAL CONFESSION.
BY AFFIDAVITS, llJRITTEN STATENENTS OF l.rJITNESSES AND ANY OTHER DOCUMENTAF:Y EVI_:
DENCE AND SUCH WAIVER AND CONSENT HAVING BEEN APPROVED BY THE COURT IN WHITING
AND FILED IN :fHE PAPERS OF THE· CAUSE· AND THE COURT HAVING HEARD DEFENDANT···s
WAIVER OF THE READING OF THE CHARGIN~ INStRUMENT~ AS SHOWN ABOVE, DEFENDANT'S
PLEA THERETO, THE EVIDENCE SUBMITTED AND THE ARL:tUMENT OF COUNSEL, IS OF THE
OPINION FROM THE EVIDENCE SUBMITTED tHAT DEFENDANT IS GUILTY OF THE OFFENSE AS
5HOl•JN ABOVE AND THAT THE OFFENSE WAS CONMITTED BY SAID DEFENDANT ON THE DATE
3ET FORTH ABOVE. THE COURT FURTHER MAKES ITS FINDING AS TO DEADLY WEAPON AND
RESTITUTION OR REPARATION AS SET FORTH ABOVE.
              AND WHEN SHOWN ABOVE THAT THE CHARGING INSTRUMENT CONTAINS ENHANCE-
'iENT PARAGRAPH(S), WHICH WERE NOT WAIVED OR DISMISSEI:r+ THE COURT .. AFTER HEARING
fHE DEFENDANT/S PLEA TO SAID PARAGRAPH(S)~ AS SET OU. ABOVE AND AFTER HEARING
=-uF:THER EVIDENCE ON THE ISSUE OF PUNISHMt.NT, THE COURT 1"1AKES ITS FINDING AS
3ET OUT ABOVE;_ IF THUEt THE COURT IS OF THE OPINION AND FINDS DEFENDANT HAS
3EEN HERETOFOKE crn~VIC ED OF SAID OFFENSE(S) ALLEGED IN THE SAID ENHANCEMENT
=·ARAGRAPH {S > AS MA 'i BE SHOWN ABOVE.
           AND WHEN SHOWN ABOVE THAT THERE WAS A PLEA BARGAIN AGREEMENT, THE
}EFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD . FOLLOW OR HE.JECT SUCH
~GREEMENT ~~ IF THE COURT REJECTED SUCH AGF£EMENT THE DEFENDANT WAS GIVEN  AN
]PPORTUNITY TO l•JITHDRAW HIS PLEA PRIOR TO ANY FINDING ON THE PLEA-
           WHEN IT IS SHOWN ABOVE THAT RESTITUTION HAS BEEN ORDERED BUT 7 "THE
:OURT DETERMINES THAT THE INCLUSION OF THE VICTIM/S NAME AND ADDRESS lN THE
JUDGMENT IS NOT IN THE BEST INTEREST OF THE VICTIM      THE PERSON OR AGENCY
JHOSE NAME AND ADDRESS IS SET OUT IN THIS JUDGEMENT WILL ACCEPT AND FORWARD THE
~ESTITUTION PAYMENTS TO THE VICTIM.

           AND WHEN IT IS SHOWN BELOW THAT PAYMENT OF THE COSTS OF LEGAL
)ERVICES PROVIDED TO THE T~E~~IANT IN THIS CAUSE HAS BEEN ORDEREia, "THE COURT
~INDS THAT THE DEFENDANT HAS THE FINANCIAL RESOURCES TO ENABLE.THE DEFENDANT TO
JFFSET SAID COSTS IN THE AMOUNT ORDERED.           .
            THEREUPON THE SAID DEFENDANT WAS AS~ED BY THE COURT WHETHER HE HAD
;NYTHING TO SAY WHY SAID SENTENCE SHOULD NOT BE PRONOUNCED AGAINST HIM.:z..._AND HE
tNSWERED NOTHING IN BAR THEREOF~ AND IT APPEARING TO THE COURT THAT Dt.rENDANT
 S MENTALLY COMPETENT AND UNDERbTANDING OF THE PROCEEDINGS.
      ·      . IT IS    THEREFORE   CONSIDERED AND ORDERED BY THE· COURT IN THE
'RESa-tCE Of DEFENflANT, AND tHS ATTORNEY, THAT SAID .JUDGMENT As· SET FORtH ABDVE.7-
 S HEREBY IN ALL THINGS APPROVED AND CONFIRNED, AND THAT SAID DEFENDANT Bt::.
,IJJUDGED GUILTY OF THE OFFENSE AS SHOWN ABOVE, AND THAT SAID DEFENDANT BE
'UN I SHED IN ACCOF<:DANCE WITH THE PUNISHMENT SET FORTH ABOVE~ AND DEFENDANT IS
ENTENCED TO A TERM OF IMPRISONMENT OR FINE OR BOTH.:z. AS St.T FORTH ABOVE.l.. AND
 EFENDANT SHALL BE DELIVERED BY THE SHERIFF TO THe. DIRECTOR OF THE INbTITU-
 IONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, OR OTHER
 ERSON LEGALLY AUTHORIZED TO RECEIVE SUCH CONVICTS FOR THE PUNISHMENT ASSESSED
 EREIN, AND SAID DEFENDANT SHALL BE CONFINED FOR THE ABOVE-NAMED TERM IN ACCOR-




                                                                                           26
)ANCE WiTH THE PROVISION --~.AW       GOVERNING SUCH PUNT -(1. •TS.  IT IS   FU~
JR[tERED THAT THE DEFENDA't-....\ 1 THE FINE .COURT COST.-,     TS AND EXPENSES
_EGAL SERVICE PROVIDED BY ·,~E COURT APP6INTED ATTORNE)· . ~HIS CAUSE, 'IF ·~
~NH RESTITUTION DR REPARATION. AS SET FORTH HEREIN.          .                   ·
            DEFENDANT IS HEREBY ORDERED REMANDED TO JAIL UNTIL SAID SHERIFF C
JBEY THE DIRECTIONS OF THIS JUDGMENT.
            FOLLOWING THE DISPOSITION OF THIS CAUSE THE DEFENDANT~s FINGERPRIN
lAS, IN OPEN CDURTt PLACED UPON A CERTIFICATE OF FINGERPRINT. SAID CERTIFICAT~
 S ATTACHED HERE 0 AND IS INCOHPORATED BY REFERENCE AS A PART OF THIS
IUDGMENT.



           COURT COSTS IN THE AMOUNT OF $124.50




                                                                               27
                                     JUDGMENT
                                                                                        .(.
                           CcrlTIFICATE OF THUMBPRINT


                       CAUSE NO.    rq~-- oa set tt PLL
 THE STATE OF TEXAS                                  IN THE -""Z'-1.0.._/'J_·f_ _ __

 vs.                                                 DISTRICT COURT            ~
~rY1'u0/r QDd oG---/ &_                              DALLAS COUNTY, TEXAS




Right
Thumb*                                       Defendant•s      --~~~----        hand

THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE.,:
NAMED DEFENDANT• S FINGERPRINTS TAKEN AT THE TIME OF DISPOSITION
OF TllE ABOVE STYLED AND NUMBERED CAUSE.

DONE IN COURT THIS     d_L     DAY OF   ::...J.-1'---<>-1/-=-------'   191>=__.    ~ /0''2._11-L

                                 ~ i:t.~~ BALF/DEPUTY SHERIFF
                                                                        J-S1   .


*Indicate here if print other than defendant's right thumbprint
is placed in box:


       left   thumbpri~t                 left/right index finger


       other,




                                                                                                   28
        .   ·- . - - "   - -"   --
                                                reRK···s.     CERTIFICATE           ce
        THE STATE OF TEXAS:


        COUNTY OF DALLAS

                     I, BILL LONG, CLERK OF THE DISTRICT COURTS WITHIN AND FOR
            THE STA.TE AND COUNTY AFOF:ESAID, DO HEREBY ·cERTIFY THAT THE "ABOVE
            AND     FOREGOING          IS     A TRUE       AND     CORRECT    COPY OF .JUDGMENT AND
            IMPOSITION OF SENTENCE IN CAUSE NO. F-9402594-PU                              ENTITLED THE
            STATE OF TEXAS VS. RODNEY ELNESTO SMILEY
            AS THE SAt1E APPEARS ON RECORD IN VOL. 1 98                            PAGE 1B7
            NOW ON FILE IN           1'1Y   OFFICE.
                    GIVEN UNDER NY HAND AND SEAL OF OFFICE IN DALLAS COUNTY,
        TEXAS, THIS 29T!-:! !:JAY OF                  NOVEMBE.,t::~,   1994

                                                               BILL LONG
                                                               DISTRICT CLERK
                                                               DALLAS    INTY,

\.
I                                                              ·BY:
    I




                                                                                                         29
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                                                                                                                                         13, 2014, 10:21:58 AM

      :SSUKA25             TEXAS DEPARTMENT OF CRIMINAL JUSTICE            10:21:52
                              CLEMENCY AND PAROLE SYSTEM                   05/13/14
                                 MINUTES BROWSE SCREEN
  'DCJID NUMBER: 00693698          SID NUMBER: 03361205          PIA NUMBER: 000000
  ~pp NUMBER:                      NAME: SMILEY,RODNEY ELNESTO
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        06-07-2011 REVIEW PROCESS                NTO      BOARD VOTE
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 PP NUMBER:                         NAME: SMILEY,RODNEY ELNESTO
 URRENT STATUS: CURRENTLY IN ID
 EL ACTN DATE                 PROCESS           ACTN          TYPE OF ACTION
    04-~7-2009      REVIEW PROCESS             CASEP   MONTHLY CASE PULL
    09-05-2008 CURRENTLY AN INMATE             STLTR   TP DATE STATUS LTR
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    06-04-2008 REVIEW PROCESS                  NTO     BOARD VOTE
    06-03-2008 REVIEW PROCESS                  CASEP   MONTHLY CASE PULL
    10~11.:...2007 CURRENTL.Y AN INMATE        STLTR   TP DATE STATUS LTR
    10-10-2007 CURRENTLY AN INMATE             NR      RECORD HAS NO ACTION TYPE
    11-21-2006 REVIEW PROCESS                  NTO     BOARD VOTE
    11-19-2006 REVIEW PROCESS                  CASEP   CALCULATE STATUS
    11-17-2006 CURRENTLY AN INMATE             STAFF   PAROLE VIOLATOR
    11-08-2006 REYOCAbiON                    . PROC    REYOKE N~W CONVICTION TO.~EX
    11-08-2006 REVOCATION                      APP     REVOKE NEW CONVICTION TO TEX
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      DCJID NUMBER: 00693698          SID NUMBER: 03361205           PIA NUMBER: 000000
      PP NUMBER:                      NAME: SMILEY,RODNEY ELNESTO
      ORRENT STATUS: CURRENTLY IN ID
     EL ACTN DATE              PROCESS            ACTN            TYPE OF ACTION
          03-02-2006 ARREST .WARRANT             REC     PRE REVOCATION
          11-21-2003 CURRENTLY A PAROLEE OR MS NOTE      TP DATE STATUS LTR
          08-08-2003 CURRENTLY A PAROLEE OR MS STAFF     CHANGE PROCESS TYPE-GENERATE
         08-07-2003 ARREST WARRANT               WDWA    PRE REVOCATION
         07-31-2003 REVOCATION HEARING           DENY    CONTINUE SUPERVISION
         06-25-2003 ARREST .WARRANT              REC     PRE REVOCATION
         09-21-2001 CURRENTLY A PAROLEE OR MS NCR        INSTATE
         09-18-2001 CURRENTLY A PAROLEE OR MS PARL       INSTATE
         08-30-2001 REVIEW PROCESS               PROC    INSTATE
         07-03-2001 REVIEW PROCESS               NCR     NCR
         81-12-2001 REVIEW PROCESS               STLTR   TP
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         01-11-2001 REVIEW PROCESS               FI-6R   BOARD FI
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          PP NUMBER:                         NAME: SMILEY,RODNEY ELNESTO
          JRRENT STATUS: CURRENTLY IN ID
          ~L ACTN DATE               PROCESS             ACTN           TYPE OF ACTION
              09-06-2000 REVIEW PROCESS                 NTO      BOARD VOTE
              09-05-2000 REVIEW PROCESS                 CASEP    MONTHLY CASE PULL
              11-24~1999   CURRENTLY AN INMATE          STLTR    TP DATE STATUS LTR
              11-23-1999 CURRENTLY AN INMATE            NR       RECORD HAS NO ACTION TYPE
              09-08-1999 REVIEW PROCESS                 NTO      BOARD VOTE
              09-07-1999 REVIEW PROCESS                 CASEP   MONTH~Y CASE PULL
              11-12-1998 CURRENTLY AN INMATE            STLTR   TP DATE STATUS LTR
              11-10-1998 CURRENTLY AN INMATE            NR      RECORD HAS NO ACTION TYPE
              07-09-1998 REVIEW PROCESS                 NTO     BOARD VOTE
              07-08-1998 REVIEW PROCESS                 NTO     BOARD VOTE
            · 07-07~1998 .REVIEW PROCESS                CASEP   MONTHLY CASE PULL
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                                                     B·S                                 34
         ACTN
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OR MS NOTE
OR MS NA
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     EXHIBIT

    B-t.        35
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 DCJID NUMBER: 00693698          SID NUMBER: 03361205             PIA NUMBER: 000000
 PP NUMBER:                      NAME: SMILEY,RODNEY ELNESTO
 JRRENT STATUS: CURRENTLY IN ID
 ;L ACTN DATE              PROCESS            ACTN            TYPE OF ACTION
     09-04-1991 REVIEW PROCESS               NTO     BOA~D VOTE
    09-04-1991 REVIEifiJ PROCESS             CASEP   MONTHLY CASE PULL
    08-28-1991 CURRENTLY AN INMATE           STAFF   PAROLE VIOLATOR-NEW TDC NUMB
    08-22-1991 REVOCATION                    PROC    REVOKE NEW CONVICTION TO TEX
    10-09-1990 CURRENTLY A PAROLEE OR MS NOTE        CHANGE PROCESS TYPE-GENERATE
    10-09-1990 REVOCATION HEARING            WDFI    000 . - TYPE ACTION NOT. FOUND
    10-08-1990 REVOCATION HEARING            ABSC    RETURNED FROM ABSCONDER TO A
    04-02-1990 REVOCATION HEARING            ABSC    DECLARED ABSCONDER
    04-02-1990 REVOCATION HEARING            APP     000 - TYPE ACTION NOT FOUND
    04-02-1990 REVOCATION HEARING            REC     000 - TYPE ACTION NOT FOUND
    02-20-1990 CURRENTLY
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    01-09-1990 CURRENTLY A PAROLEE OR MS NA          PAROLE REVIEW
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    PP NUMBER:                       NAME: SMILEY,RODNEY ELNESTO
    ORRENT STATUS:
    EL ACTN DATE               PROCESS           ACTN           TYPE OF ACTION
       04-20-1989    CU.RRENTLY A PAROLEE OR MS PARL     INSTATE
       04-19-1989    REVIEW PROCESS             PROC     INSTATE
       11-03-1988    REVIEW PROCESS             APP      INSTATE
       11-03-1988    REVIEW PROCESS             REC      INSTATE
       11-02-1988    REVIEW PROCESS             FI-2     000 - TYPE ACTION NOT FOUND
       11-02-1988    REVIEW PROCESS             NTO      COMMISSIONER FI
       10-13-1988    REVIEW PROCESS             CASEP    MONTHLY CASE PULL
       10-06-1988    CURRENTLY AN INMATE        NOTE     CALCULATE STATUS-GENERATED




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                                                13-i                             37
                                                                                                                                                   ce.
                                               /ASE NO. 1011284D
   THE STATE OF TEXAS                                            §                                          IN THE 213TH DISTRICT

   VS.                                                           §                                          COURT OF
  RODNEY ELNESTO SMILEY                                          §                                          TARRANT COUNTY, TEXAS


                        JUDGMENT ON PLEA OF GUlLTY OR NOLO CONTENDERE BEFORE COURT
                                       .    W AlVER OF JURY TRIAL


  Judge Presiding                 HON. ROBERT K. GILL                                Date of Judgment                    OCTOBER 26, 2006
  Attorney for State                                                                 Assistant District
  District Attorney                TIM CURRY                                         Attorney                            SHANE LEWIS



                    I
  Attorney for Defendant          JOETTA KEENE                                       Charging Instrument: INDICTMENT

  Offense Date                   /Convicted Offense

  AUGUST I, 20               I    INJURY TO A CHILD WITH INTENT70 AUSE BODILY INJURY

 ~;·                             • Count                                     •       Plea

 3RD                              ELEVEN                                             GUILTY
 Findings on
 Deadly Weapon                    NONE
 Tenns of Plea Bargain            10 YRS IDTDCJ, WAIVE COUNTS ONE THROUGH TEN
 Plea to Enhancement
 Paragraph(s)                     NONE
 Plea to Habitual
 Paragraph(s)                     HABITUAL OFFENDER NOTICE- WAIVED BEFORE PLEA
 Findings· on Enhancement/
 Habitual Paragraph{s)       j   NONE
 Date Sentence hnposed           OCTOBER 26, 2006                                    Date to Commence : OCTOBER 26, 2006
 Punishment          : COUNT ELEVEN -TEN (10) YEARS
 Place of Confinanen/: INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE




Time Credited                    260DAYS                                         Court Costs                             $253.00
Reparation                       $1,000.00                                       Restitution                             NONE

                                 RECOMMEND THAT APPOINTED COUNSEL FEES UNDER TEX. CODE OF CRlM.
                                 PROC., ANN., ARTICLE 26.05 OF $1,000.00 BE PAYABLE TO AND THROUGH THE
                                 DISTRlCT CLERK'S OFFICE OF TARRANT COUNTY, TEXAS, AS CONDIDON OF PAROLE.


          On this day, set forth above, this cause came for trial and came the State of Texas by its above-named attorney, and the
 Defendant appeared in person and by the above-named attorney for the Defendant, or, where a Defendant is not·represented by
 counsel, that the Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel; and announced
 ready for tri::!, the Defendmt h:1.ving been heretofore :1.rraigned, or having waived arraignment in open court, and having agreed
that the testimony may be stipulated in this· cause and the Defendant, his counsel, and the State's attorney having agreed in writing
in open court to waive a jury in the trial of this cause and to submit this cause to the Court, and the Court having agreed to the
same, the said attorney for the State read the instrument charging the offense as shown or the reading of the charging instrument
having been waived by the Defendant in open court; the Defendant entered the above shown plea thereto; and it appearing to the
Court that the Defendant is mentally competent and the plea is free and voluntary, and the Court having duly admonished the
Defendant as to the consequences of such plea, including the range of punishment attached to the offense and the fact that any
recommendation of the prosecuting attorney as to punishment is not binding on the Court, yet the Defendant persisted in entering
such plea; said plea is by the Court receilled and now entered of record upon the minutes of the Court, is of the opi¢on and so
finds that the said Defendant is guilty of the offense as confessed and set forth above.
                    And when shown above, that the charging instrument contains enhancement paragraph(s), which wert?;~4waived,
""" "'''~ Dofmdmi lo hm h= ~•kiol p~•lo~ly of my fol=y m off=~ fo1 lho pwpo~ o f " " " - ' 75~                                                            "'"""'
                                                                                                                                                                         EXHIBIT

                                                                                                                      IIMmlifliliilfilliii~OOI f
                                           VOLUME PAGE A OF CASE NO. I011284D

                                                                                                                                                                          e3a
                                                              ___   .:;.   _____ _______
                                                                                 .             - --   ...   ·-----. --- -· .... :. __________ ,   --~----:..__   ____.
                                                                                 CID #0267313
                                                                                       59B
                                            JUDGEMENT
                                    CERTIFICATE OF THUMBPRJNT


                                          CAUSE NO 1011284


            THE STATE OF TEXAS                               IN THE CRIMINAL

            vs.                                              DISTRICT COURT D213

            SMILEY. RODNEY E                                        TARRANT
            COUNTY,TEXAS




:.~   ..




                                                              Defendant';\( i   @';'\. J-:    hand
                          Right .Thumb*



            THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE-
            NAMED DEFENDANT'S FINGERPRINTS TAKEN FOR THE ABOVE STYLED
            AND NUMBERED CAUSE•

           . TAKEN ON TIDS     dLO          DAY OF   0c~JoJo.el2. , ~C) \o
                                                                                d--D~
                                                           JXJ·~
                                                             DEPUTY SHERIFF
                                .                                                .
            *Indicate here if print other than defendant's right thumbprints placed in box:

           _ __cLeft thumbprint                       _ _Left/right index finger

           - -Other

                                                                                                     39
 NAME RODNEY ELNESTO SMILEY                                OFFENSE SEXUAL ASLT CHILD (AGG)
 ADDRESS       532 CLAIRE CT                               DA1E 6/1/2003              Habitual
               ARLINGTON TX 76012 ·                        I.P. TERRIKA DYKES .
 RACE B     SEX M AGE41         DOB 7/12/1964
 CASENO. 1011284        DA1EFILED         2113/2006        AGENCY Fort Worth PO
 CID NO.    0267313                                        OFFENSENO. 05154991
                                                           COURT 213th District Court


                                      INDICTMENT NO. 1011284       j)
 INTIIENAMEANDBY AUTHORITYOFTIIESTA1EOFTEXAS:
 THE GRAND JURORS OF TARRANT COUNTY, TEXAS,
 duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in Tarrant County, in the
 State of Texas, upon their oaths do present in and to the
                                                                  372nd DISTRICT COURT
 of said County that RODNEY ELNESTO SMIT..EY, hereinafter called Defendant, in the County of Tarrant and
 State aforesaid, on or about the 1st day of June 2003, did

 THEN AND TiffiRE INTENTIONAILY OR KNOWINGLY CAUSE TilE PENEffi.ATION OF TilE FEMALE
 SEXUAL ORGAN OF TERRIKA DYKES, A CHILD YOUNGER TilAN 14 YEARS OF AGE WHO WAS
 NOT TiiE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER FEMALE SEXUAL ..
 ORGAN,

 COUNT TWO: AND IT IS FURTilER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT
 IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE,
 2003, DID THEN AND TIIERE INTENTIONAILY, WITH TilE INJENTTO AROUSE OR GRATIFY THE
 SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING 11I.E
 FEMALE SEXUAL ORGAN OFTERRIKA DYKES, A CHILD YOUNGER TIIAN 17 YEARS AND NOT
.THE SPOUSE OF TiiE DEFENDANT,                    . ·                      .

  COUNT TiiREE: AND IT IS FURTiiER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT
· IN TiiE COUNTY OF TARRANT AND·STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE, .
  2003, DID THEN AND TiffiRE INTENTIONAILY OR KNOWINGLY CAUSE THE PENEIRATION OF
  TilE ANUS OFTERRIKA DYKES, A CHILD YOUNGER TilAN 14 YEARS OF AGE WHO WAS NOT TilE
  SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER ANUS,

COUNT FOUR: AND IT IS FURTiiER PRESENTED IN AND TO SAID COURTTIIAT TilE DEFENDANT
IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE,
2003, DID THEN AND TiffiRE INTENTIONALLY, WITH TilE INTENT TO AROUSE OR GRATIFY TilE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACI' BY TOUCHING TilE ANUS
OF TERRIKA DYKES, A CHILD YOUNGER THAN 17 YEARS AND NOT 1HE SPOUSE OF THE
DEFENDANT,                                    .                         .

COUNT FIVE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT
IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT Tiffi 1ST DAY OF JULY,
2003, DID THEN AND TiffiRE INTENTIONALLY OR KNOWLINGLY CAUSE Tiffi SEXUAL ORGAN OF,
TERR.IKA DYKES, A CHILD YOUNGER TIIAN 14 YEARS OF AGE WHO WAS NOT THE SPOUSE OF
SAID DEFENDANT TO CONTACT TilE SEXUAL ORGAN OF TilE DEFENDANT,
COUNT SIX: ·AND IT IS FURTIIER PRESENTED IN AND TO SAID COURT TIIAT THE DEFENDANT IN
THE COUNTY OFTARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JULY, 2003,




                                                                                                                 40
    NAME     RODNEY 'ELNESTO SMILEY
    CASE NO. 1011284
                                                                                             ce.
    PAGE     2 of 3
    DID THEN AND THERE INTENTIONALLY EXPOSE HIS PENIS TO TERRIKA -DYKES, A CHll..D
    YOUNGER 1HAN 17 YEARS AND NOT HIS SPOUSE, KNOWING SAID CHlLD WAS PRESENT, WITH
    THE INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT,

    COUNT SEVEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT TilE DEFENDANT
    INTHECOUNTYOFTARRANT AND STATEAFORESAIDON OR ABOUT THE 1ST DAY OF AUGUST,
    2004, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE PENETRATION OF
    THE FEMALE SEXUAL ORGAN OF TERRIKA DYKES, A CHTI...D YOUNGER THAN 14 YEARS OF AGE
    WHO WAS NOT THE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER IN HER FEMALE
    SEXUAL ORGAN,

    COUNT EIGHT: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
    IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF AUGUST,
    2004, DID THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
    SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE
    FEMALE SEXUAL ORGAN OF TERR1KA DYKES, A CHll..D YOUNGER TIIAN 17 YEARS AND NOT
    THE SPOUSE OF THE DEFENDANT,

    COUNT NINE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
    IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF AUGUST,
    2004, DID THEN AND TIIERE INTENTIONALLY OR KNOWINGLY CAUSE THE PENETRATION OF
    THE ANUS OF TERRIKA DYKES, A CHll.D YOUNGER THAN 14 YEARS OF AGE WHO WAS NOT THE
    SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER ANUS,             ·

    COUNT TEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THATTIIE DEFENDANT IN
    THECOUNTYOFTARRANTANDSTATEAFORESAIDONORABOUTTHE1STDAYOFAUGUST,·
    2004, DID TiffiN AND TIIERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
    SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE ANUS
    OF TERRIKA DYKES, A CHll..D YOUNGER THAN 17 YEARS AND NOT THE SPOUSE OF THE
    DEFENDANT,

      HABITUAL OFFENDER NOTiCE: AND IT IS FUR1HER P.RESENTED TO SAID COURT THATPRIOR TO
      THE COMMISSION OF THE OFFENSE OR OFFENSES SEf OUT ABOVE, THE DEFENDANT WAS
      FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF A BUll.DING, IN-THE 297TH
      CRIMINAL DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0341914D, ON
      AUGUST 29, 1988, AND, THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES FOR
    · WHICH THE DEFENDANT WAS CONVICIED AS SEf OUT ABOVE, THE DEFENDANT WAS FINALLY
      CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF HABITATION, IN THE 291ST nJDICIAL
 . · DISTRICT COURT OF DAlLAS COUNTY, TEXAS, IN CAUSE NUMBER F94-23105-U, ON MAY 9, 1994,

    too~ ~(e~J;     A11J..    :I;-\- "I'$ n,,.~   Pcev..,f,J_   "1;., lr~Vcl, To   '$.o..J
                                                                             Co.,rt 7/tA.,f
    #h.c. ~~ '"LI            -n-.e.   ~"-\y o~ -r"PI'IMI-r. A~ ~4-...k Af.~e3~J o~ .or
     A~ ..+ ~ l$\- ·PI~d:,. b~ ~"' ~+1 "'Zoo4_, ~,c,t -t1t~~J "'-~~ ~ · w.k~'J'
@'""""-'t'tf'. ~c -;;.~.s:{ <s I' •uo~e ,,. &;,zt-, '"«: Sz i!Zilt ~· A.a~
~    &J,'ty   MJ~7 ~ ~,..:;~ Dy~~                   1   ~ ct.,!J y~"'"j''r ~ 1£'yeA.rr
     6   t   ~L   B'f   ~dh~ J.kr 1.4.M JhS J.k~                                         .    f}::/¥i:,. '\%
                             r




                                                                                                               41
 NAME     RODNEY ELNES10 SMILEY
 CASE NO. 1011284
                                     (.
                                     '1. •• •
                                                ·... __,'



 PAGE     3of 3




                                                            Filed (Cierk"s use only)




AGAINST TIIE PEACE AND DIGNITY OF TIIE STATE.




         Criminal District Auorney
         TarrantCOuncy,Tex~
         INDICTMENT- ORJGINAL




                                                                                       42
      EPORT :· ITS40 9SO       T. D.C.,- INSTITUTIONAL DIVISIIJ~!.,.           12/07/2006
      49 '                     .   . (     TE TRACK~NG SYSTEM ..   (1
                                       '~ MMITMENT DATA FORM     ~               PAGE     1

       ID NO •... :   03361205   TDC NO: DD693698    PIA NO:  DODD DO
      M1E ...... :    SMILEY,RODNEY ELNESTO            DOB: D7/12/1964 RACE: B SEX: M
      ECE IVED .. :   Ol/3D/1995 UNIT .. : ND JOE F GURNEY
      ENT BEGN. :     D6/28/1994                                                   . L1
      ET SENT .. :    D025Y DOM ODD LEGISLATURE:      73RD   OUT OF CUST. :  1588
      IN EXP DT:      D4/D8/2D14    MS CALC CD. : y          BONUS TIME •. :    0
      f.. X EXP DT:   11/D2/2023    PAR CALC CD: FLAT & GOOD TDC CALC PAR: D4/07/20D7

         OFFENSE              MAX. TERM YMD OFF DATE        SENT DATE CC P COURT/COUNTY
       DESCRIPTION              /SENT BEG                             CU L CAUSE
                                /MIN EXP      /MAX EXP       /PAROLE
                                /OUT OF CUST.
      --------------------------------------------------------------------------
               .                 .                .
       INJURY TO CHILD       0010Y OOM ODD 08/D1/20D4 1D/26/2D06 CC G 213 TARRANT
        WIT CAUSE BI           02/08/2006 JAIL GT:Y        1011284D           CNT:11
                               09/21/2010 02/08/2016 04/07/2007 MSCLC:    PRLCL:N

      liL GOOD TIME CREDITED FROM SENTENCE BEGIN DATE
      llH/72ND/73RD LEGIS: MANDATORY SUPV' PROSPECT
      JT ELIGIBLE FOR SB1167 PER TDCJ BOARD POLICY
                   J~sfit                      ·
      ~MARKS •.• : 2-8 6G!RET'D FROM PAROLE STATUS FROM TARRANT COW/.-~·
                   NEW IOYR CONV. OOC_4-4-20. JGT ALLOWED FROM 2-8-06
                   ONLY. LlW EFF 2-8-06.
                   11-16-06 HW                 .
                   REC'D ·JCN CHANGING REARREST DATE FROM 02~os-b6 TO
                   01-24-06. CHANGING OOC FROM 4-4-20 TO 4-4-6.
                   DENIED HB~649 MIDPOINT.
                   KH 12-07-06




I[
il
III

I
                                                         EXHIBIT

                                                          D                               43
             --= _ P.~~-s ~~~~--{·-----.-------~---- __________!~~-~__9!.-_~·-X__~]_!_____?0~_4-:-~----~-Q~~-~j ~_Q_?__~M
~~ t d-~~~~t p                                                                                                 __

CSIMF800/INI801                  COMMITMENT INQUIRY     '            05/13/14 10:43:57
 INMTCICS/KNA1251 /1FTP TDCJ-ID NO: 00693698 SIDNO: 03361205
. NAME: SMILEY,RODNEY ELNESTO             APPL:       STATUS: A RK VS S3 · #OFF: 04
  OLD TDC#: 00592793 CNTY CONV: 057 .                                              73RD
  OFF-REC:     2321 PRJ RL: 02-08-2016 REC:     01-30-1995 MAX-TERM:      25Y OM OD
  PEN-REC: 031.030 MAX-EX: 11-02-2023 BEGIN: 06-28-1994 PAR-ELIG: 01-01-0001
                             INMATE TYPE: ID    HB1433: N HB1433 VOTE:
  DYNAMIC RISK ASSESSMENT: .         TYC:       HB1433 MIN EXP: ·
     OFFCD: 23210000 THEFT PROP 0/750 L/20,000
      3DEG                                                                            73RD
      PENAL:031.030 MS:Y PLEA:G CAUSE:F-9402594-PU          CNT:OO      OFF:02-08-1994
      CC CNTY OFF:057 CNTY/CRT:057 291 MAX TERM: 25Y OM OD              BEG:06-28-1994
      MIN EXP:05-13-2013 MAX:ll-02-2023 PAR'ELIG:Ol-01-0001 SENTENCED:ll-28~1994
      HB1433:N HB1433 VOTE:        HB1433 MIN EXP:                               REST: N
      OFF TDCNO: 00693698                                          CTO DATE 01-01-0001
     OFFCD: 13990043 INJURY TO CHILD WIT CAUSE BI
      3DEG                                                                            73RD
      PENAL-:022.040 MS:Y PLEA:G CAUSE:1011284D             CNT:11:     OFF:-08-01-2004·
      CC CNTY OFF:220 CNTY/CRT:220 213 MAX TERM: lOY OM OD              BEG:02-08-2006
      MIN EXP:02-08-2016 MAX:02-08-2016 PAR ELIG:Ol-01-0001 SENTENCED:l0-26-2006
      HB1433:Y HB1433 VOTE:DMS HB1433 MIN EXP:04-14-2010                         REST: N
      OFF TDCNO: 00693698                                         ·cTO DATE 01-01-0001
PF7:UP,PF8:DOWN,.PF2:TOP OF LIST,OR NEXT REQUEST/TDC - - - - - - - OR SID - - - - - - -




                                                          EXHIBIT

                                                         E.. J                                                  44
~---~-~~~-~_!_t:_~--=-;- P~-~--~-~-~~!_-----(·- ____ _------:-----------._T_~e. s da ¥(.~[_} 3 ,~~-'--~.0 ~-!~__:__1_?___~~--
 :SIMF800/INI801                COMMITMENT INQUIRY                 05/13/14 10:44:05
 INMTCICS/KNA1251 /1FTP TDCJ-ID NO: 00693698 SIDNO: 03361205
  NAME: SMILEY,RODNEY ELNESTO            APPL:       STATUS: A RK VS S3     #OFF: 04
  OLD TDC#: 00592793 CNTY CONV: 057                                           73RD
  OFF-REC:    2321 PRJ RL: 02-08-2016 REC:     01-30-1995 MAX-TERM:     25Y OM OD
  PEN-REC: 031.030 MAX-EX: 11-02-2023 BEGIN: 06-28-1994 PAR-ELIG: 01-01-0001
                           INMATE TYPE: ID     HB1433: N HB1433 VOTE:
  DYNAMIC RISK ASSESSMENT:          TYC:       HB1433 MIN
     OFFCD: 22090000 BURG OF HABITAT
      1DEG                                                                      70TH
      PENAL:030.020 MS:Y PLEA:G CAUSE:F91-31080-P          CNT:OO     OFF:04-16-1991
      CC CNTY OFF:057 CNTY/CRT:057 203 MAX TERM: 15Y OM OD            BEG:05-24-1991
      MIN EXP:09-22-2008 MAX:04-01-2012 PAR ELIG:01-01-0001"SENTENCED:06-05-1991
      HB1433:N HB1433 VOTE:       HB1433 MIN EXP:                            REST: N
      OFF TDCNO: 00592793                                    DISCHARGED 04-01-2012
     OFFCD: 22090000 BURG OF HABITAT
      1DEG ENH                                                                  70TH
      PENAL:030.020 MS:Y PLEA:G CAUSE:F91-41655-HP         CNT:Q-0    OFF:04-02-199i
      CC CNTY OFF:057 CNTY/CRT:057 203 MAX TERM: 15Y OM OD            BEG:OS-24-1991
      MIN EXP:09-22-2008 MAX:04-01-2012 PAR ELIG:01-01-0001 SENTENCED:06-05-1991
      HB1433:N HB1433 VOTE:       HB1433 MIN EXP:                            REST: N
      OFF TDCNO:. 00592793                                 · DISCHARGED 04-01-2012
'F7:UP,PF8:DOWN,PF2:TOP OF LIST,OR NEXT REQUEST/TDC              OR·SID - - - -
:No OF OFFENSES; ALL OFFENSES 'HAVE BEEN .DISPLAYED




                                                           EXHIBIT

                                                          £ .. 1                                                   45
     Aj ___ td<::_g]:arw   ~--!~~S-~<?_RT ____ -c•~------~----------   ______!l!_~~d~y(._L 13 '. ___?_9~~-~-:-~~-:_~_§_:__~~--P~--
     CSSUKA4D             TEXAS DEPARTMENT OF CRIMINAL JUS'l'ICE                                             05/13/2014
     BPPDCICS/1ARW                  NDMS INFORMATION                                                           14:48:06
     SID NUMBER: 03~61205        TDCJID NUMBER: 00693698                                             PIA NUMBER:
     NAME: SMILEY,RODNEY ELNESTO


     ~CTION     DATE: 01/14/2013

     ~RD   DATE: 05/12/2013

     3IGNATURE DATE: 01/29/2013

     ~DDITLONAL        INFORMATION .DEADLINE: 02/28/2.013



     \0409: N          REG: N


     :OMMENTS: NOTICE OF INIT DISCRETIONARY MAND. REVIEW AUTOMATICALLY.                                          (NOTICE OF
      DMS)

     'F1=HELP   . PF3=PREV MENU    ·PF5=MINUTES                                   PF12=TDCJ MENU             CLEAR= EXIT
        REQUESTED MINUTES DETAIL IS DISPLAYED.




 I
,(
 !
                                                                           EXHIBIT

                                                                             f
                                                                                                                         46
~-- ~-~~-~~-~r~~---=-~~?-~PS?_RT --(·-------.--------------------------'£1:1~-s~a_y-(~-~-~-~-~~~-~-~~~-~-8: 3~- P~-~-
::::sSUKA2A           TEXAS DEPARTMENT OF CRIMINAL JUSTICE            05/13/2014
BPPDCICS/1ARW              MINUTES DETAIL INFORMATION-                   14.48.29
SID NUMBER: 03361205         TDCJID NUMBER: 00693698          PIA NUMBER: 000000
~AME: SMILEY,RODNEY ELNESTO             PROCESS TYPE: CURRENTLY AN INMATE
~CTION DATE:   04/10/2013                      ACTION: DMS    04/01/2014
PAROLE GUIDELINE SCORE: 5                 ACTION TYPE: RECORD HAS NO ACTION TYPE
?AROLE BOARD MEMBER        ACTION         PAROLE BOARD MEMBER       ACTION
)AVID GUTIERREZ       DMS    04/01/2014 ·TROY FOX              DMS    04/01/2014




~EASONS:  9D1 9D2 1D 2D 5D
)PEC COND: - - - - - - - - - - - - · - - - - - - - - - - - - - -
                           "Z" COUNTIES:            "A" COUNTY:
:OMMENTS:


lFl=HELP . ' PF3=PREV MENU        PF5=MINUTES                        PF12=TDCJ MEN:U               CLEAR='EXIT.
    REQUESTED MINUTES DETAIL. IS DISPLAYED.




                                                                  EXHIBIT

                                                                    c,                                     47
                          ~tate        <!Coun9'el for ®ffenber9'
                               1!1 :IDibision of 'Oi:exas :roepartment of QJ:riminal3Jnstice
                                                 P.O. Box 4005
                                           Huntsville, TX 77342-4005                                     FILED
                                                (936) 437-5203                                 THOMAS A WILDE~.J>JST. CLERK
                                                                                                 TARRANT COUN I T, TEXAS
August 20, 2014
                                                                                                       AUG 2~ 2014
Tarrant County District Clerk's Office
401 W. Belknap
Ft. Worth, TX 76196
                                                                                                TIME
                                                                                                BY
                                                                                                          Jilifl
                                                                                                          _____    DEPUTY


Re:     Tlte State of Texas v. RodneyElnesto Smiley
        Cause No. 1011284D in tlte 213tlt Judicial District Court of Tarrant County, Texas

Dear Sir or Madam:

       Enclosed, please find original and two copies of Mr. Smiley's Art. 11.07 Application for
Writ of Habeas Corpus with reference to Cause No. 1011284D. ·

       Please forward a file stamped copy of this application to the Tarrant County District
Attorney's Office as provided in Art. 11.07, Sec. 3. Please return a file-stamped copy of the
application to the undersigned in the enclosed stamped envelope.

       Thank you for your courtesies regarding this matter.

Sincerely,

Is/ Kenneth Nash
Kenneth Nash
Appellate Section Chief

KNA/lmm
Enclosures

cc:    Rodney Elnuesto Smiley
       TDCJ# 00693698
       Estes Unit
       1100 Highway 1807
       Venus, TX 76084




                                                                                                                       48
                            ce.                                                                ce

                            ~tate       (!Counsel for <l&ffenbers
                                 I1I IDibision of m:cxi15 ?Dcpilrtmcnt of <!rriminn131usticc

                                                  P.O. Box 4005
                                            Huntsville, TX 77342-4005
                                                 (936) 4:37-5203.                                   .   .   FILED                   .
                                                                                                THOMAS A WILDE~,.J),IST. CLERK
 August 20, 2014                                                                                  TARRANT COUI'II T. TEXAS

 Tarrant County District Clerk's Office                                                                 AUG 2.:1 2014
 401 W. Belknap                                                                                 TIME        j:   tf (p
 Ft. Worth, TX 76196                                                                            BY          13 R - DEPUTY
 Re:      The State of Texas v. Rodney Elnesto Smiley
          Cause No. C-213-010241-1011284-A in the
         213tlz Judicial District Court of Tarrant County, Texas

 Dear Sir or Madam:

        Enclqsed, please find original and two copies of Applic~nt's Memorandum in Support of
 Application for a Writ of Habeas Corpus with reference to Cause Number
 C-213-010241-1011284-A.

          By copy of this letter, I am forwarding a copy of same to Mr. Joe Shannon, Jr., attorney for
 the state. Please return a file..:.stamped copy of.the memorandum to the undersigned in the enclosed
 stamped envelope.

        Thank you for your courtesies regarding this matter. If there are any questions, please
 contact undersigned counsel. .

. Sincerely,                                                               5}'2-5/w!L-f-.
 Is/ Kenneth Nash
 Kenneth Nash
                                                                            pev ehot1G V'~
 Appellate Section Chief                                                    \'\J.rittl JfeMVIcfill               f'(a£h,
 Ph: (936) 437-5291
 E-Mail Address: Kenneth.Nash@tdcj.texas.gov                              ·-n/)~ JV18rvJ~tV'/lt~!~S                             I



                                                                            cAY~ 6uA.?t~Dr-h 114 uocuM'd; ·
 KNA/jma
 Enclosures                                                                  w    ~ rwvJ "fJ "           .

                                                                             wwr.               ~:!_;~
                                                                                                                  1   It' age       49
                        ce
cc:   Joe Shannon, Jr.
      Tarrant County Criminal District Attorney
      Tim Curry Criminal Justice Center
      401 West Belknap
      Fort Worth, TX 76196

cc:   Mr. Rodney Elnesto Smiley
      TDCJ# 00693698
      Estes Unit
      1100 Highway 1807
      Venus; TX 76084




                                                  2JPage   50
,·~ State Counsel for Offenders                                                                                         -. ···~~.,~···
·'P.o. Box 4005
  Huntsville, TX 77342
  ATTN: Appellate Section
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                                    Tarrant County District Clerk's Office
                                  '·40!W. Belknap·                                  -- :·-              ·{

                                    Ft. Worth, TX 76196
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                                                      Label107, January 2008
                                                 Writ Number: C-213-010293-1011284-B



                                                      213TH DISTRICT COURT

                                                                 OF

                                                     TARRANT COUNTY, TEXAS


                                                             EX PARTE

                                                    RODNEY ELNESTO SMILEY



                                                       WAIVER OF SERVICE


  Now comes Joe Shannon, Jr., Criminal District Attorney of Tarrant County, Texas and hereby
acknowledges that he has this date, August 25, 2014, received from the District Clerk a copy of the
petition for Writ of Habeas Corpus filed in the above entitled and numbered cause and he hereby
waives delivery to him of said petition by certified mail.

   It is further acknowledged that the answer to this petition, if any, will be filed within fifteen (15) days
from this date.



                                                              JOE SHANNON, JR.
                                                              CRIMINAL DISTRICT ATTORNEY

                                                              TARRANTCOUNTY, TEXAS




                FILED
   THOMAS A. WILDER, DIST. CLERK
   TARRANTCOUNTY,TEXAS

            August 25, 2014

                 ·~
                 2
                   :24
   Tm~e----~~~---------
   By -----"'!.....:....l£<'--"------'' Deputy


                                                                                                     52
                                                                           FILED
                                                                THOMAS A WILDER, DIST. CLERK
                                                                  TARRANT COUNTY, TEXAS

                                                                       SEP   0.~14
                             C-213-010293-1011284-B
                                                                TIME
                                                                BY
                                                                        ~
EX PARTE                                  §   IN THE 213th JUDICIAL                DEPUTY
                                          §
                                          §   DISTRICT COURT OF
                                          §
RODNEY ELNESTO SMILEY                     §   TARRANT COUNTY, TEXAS


     STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS
                           CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

          C01\1ES NOW THE STATE OF TEXAS, by and through her Tarrant County

Criminal District Attorney, and in opposition of the Application for Writ of Habeas

Corpus respectfully states the following to the Court based on its information and

belief:



I. HISTORY OF THE CASE

          The applicant, RODNEY ELNESTO SMILEY ("Applicant"), pled guilty,

pursuant to a plea agreement, to the third degree felony offense of injury to a child

with intent to cause bodily injury. See Judgment, No. 1011284D. In accordance with

the plea agreement, the State waived the habitual offender notice and the trial court

sentenced him to ten years confinement in the Texas Department of Criminal Justice

- Institutional Division. See Judgment.




                         SCANNED                                                        53
       Applicant did not appeal his conviction. See Criminal Docket Sheet, No.

1011284D.

       Applicant's first application for writ of habeas corpus was dismissed for non-

compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-213-

010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for publication).



II.    APPLICANT'S ALLEGATIONS

       Applicant alleges his confinement is illegal because ( 1) his rights to due

process was violated when TDCJ's notice was given and BPP's vote was taken more

than 2 years after he became eligible for mandatory supervision release and (2) his

due course of law rights were violated when TDCJ's notice was given and BPP's

vote was taken more than 2 years after he became eligible for mandatory supervision.

See Application, p. 6-9.



III.   NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF
       THE RECORD

       There is no need for an expansion of the record. Applicant's grounds for relief

can be resolved based on the record before this Court. Applicant need NOT be

brought back to Tarrant County for a hearing.




                                          2                                              54
IV.   ARGUMENT AND AUTHORITIES

A.    General Writ Law

      In a habeas corpus proceeding, the burden of proof is on the applicant. Ex

parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must prove by

a preponderance of the evidence that the error contributed to his conviction or

punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In

order to prevail, the applicant must present facts that, if true, would entitle him to the

relief requested. Ex parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App. 1985).

Relief may be denied if the applicant states only conclusions, and not specific facts.

Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an

applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte

Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).



B.    Applicant's first and second grounds for relief should be DISMISSED AS
      MOOT because he has already been reviewed, and denied, twice for
      discretionary mandatory supervision since the alleged error.

      Applicant alleges that he should have been considered for discretionary

mandatory supervision in 2010, but he wasn't. See Application, p. 6-9. Applicant

admits that he was, however, considered for, and denied, release to discretionary

mandatory supervision in April, 2013.        See Application, p. 7, 9; Memorandum,

Exhibits B-1, G. Applicant was also considered for, and denied, release discretionary



                                            3                                                55
                                                           ce
mandatory supervision in Ferbruary, 2014. See Attachment A: Parole Information

Review, No. 00693698.

      While Applicant may have had a claim from 2010 to 2012, the relief to which

he would have been entitled was immediate review for mandatory supervision. See,

e.g., Ex parte Retzlaff, 135 S.W.3d 45, 51 (Tex. Crim. App. 2004) ("Given the

repeated failures to provide adequate and timely notice to this particular applicant, we

conclude that applicant is entitled to the specific habeas corpus relief that he has

requested- a new review 'as soon as possible.'"). However, as Applicant has been

reviewed, and denied, release to mandatory supervision twice since then, Applicant's

claim that he was not timely considered for release to mandatory supervision is now

moot. See, e.g., Ex parte Ramos, 2004 WL 2241000, *2 (Tex. Crim. App. Sept. 29,

2004) (not designated for publication) ("His constitutional claim, though previously

valid, is now moot. Accordingly, we dismiss the application"). 1

      Applicant's grounds should be DISMISSED AS MOOT.




1
 Because unpublished opinions "must not be cited as authority," this case is included
only for precedential value.

                                           4                                               56
V. CONCLUSION

      Wherefore, premises considered, the State prays that this Court recommend

that Applicant's application for writ of habeas corpus be DISMISSED AS MOOT.

                                                  Respectfully submitted,

                                                  JOE SHANNON, JR.
                                                  Criminal District Attorney
                                                  Tarrant County


                                                  Ai:Idrea Jacobs
                                                  State Bar No. 24037596
                                                  401 West Belknap
                                                  Fort Worth, TX 7 6196-020 1
                                                  Phone:        817/884-1687
                                                  Facsimile: 817/884-1672

                         CERTIFICATE OF SERVICE
      A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto
Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel
for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on this the 9th day of
September, 2014.

                                                   Mdrea Jacobs

                      CERTIFICATE OF COMPLIANCE

      I certify that the total number of words in this State's Response, combined

with the accompanying State's Proposed Findings of Fact and Conclusions of Law, is

1818 words as determined by Microsoft Office Word 2010.
                                                     ~
                                                  Andrea Jacobs


                                        5                                            57
TDCJ Offender Details

                                                                                   ce
                                                                http://offender.tdcj.state.tx.us/OffenderSearch/reviewDetail.action?s ...


                                                                         [EJ TDCJ Home          -       New Offender Search




         Name: SMILEY,RODNEY ELNESTO                    SID Number: 03361205                        TDCJ Number:
         00693698


          Parole Review Information

         Parole Review Status
         Not in Parole Review



         The offender is currently not in the review process.




         Last Parole Decision
         Denied on 02/18/2014



         OMS (02/2015)- Deny release to Discretionary Mandatory Supervision and set for next review.
         Denial reason(s): 901, 902, 1D, 20, 50

         * Note: One or more of the components indicated in each paragraph may apply, but only one is required
         for denial (D).

         1D CRIMINAL HISTORY- THE RECORD INDICATES THAT THE INMATE HAS REPEATEDLY
         COMMITTED CRIMINAL EPISODES OR HAS A PATTERN OF SIMILAR OFFENSES THAT
         INDICATES A PREDISPOSITION TO COMMIT CRIMINAL ACTS WHEN RELEASED; OR THE
         RECORD INDICATES THAT THE INMATE IS A LEADER OR ACTIVE PARTICIPANT IN GANG OR
         ORGANIZED CRIMINAL ACTIVITY; OR THE RECORD INDICATES A JUVENILE OR AN ADULT
         ARREST OR INVESTIGATION FOR FELONY AND MISDEMEANOR OFFENSES.

         2D NATURE OF OFFENSE- THE RECORD INDICATES THAT THE INMATE COMMITTED ONE OR
         MORE VIOLENT CRIMINAL ACTS INDICATING A CONSCIOUS DISREGARD FOR THE LIVES,
         SAFETY, OR PROPERTY OF OTHERS; OR THE INSTANT OFFENSE OR PATTERN OF CRIMINAL
         ACTIVITY HAS ELEMENTS OF BRUTALITY, VIOLENCE, OR CONSCIOUS SELECTION OF VICTIM'S
         VULNERABILITY SUCH THAT THE INMATE POSES A CONTINUING THREAT TO PUBLIC SAFETY;
         OR THE RECORD INDICATES USE OF A WEAPON.

         50 ADJUSTMENT DURING PERIODS OF SUPERVISION -THE RECORD INDICATES
         UNSUCCESSFUL PERIODS OF SUPERVISION ON PREVIOUS PROBATION, PAROLE, OR
         MANDATORY SUPERVISION THAT RESULTED IN INCARCERATION, INCLUDING PAROLE-
         IN-ABSENTIA REVOCATIONS.

         901 DISCRETIONARY MANDATORY SUPERVISION -THE RECORD INDICATES THAT THE



1 of2                                                                                                               9/9/20
     TDCJ Offender Details

                                          (•                                            ce
                                                                     http://offehder.tdcj.state.tx.us/OffenderSearch/reviewDetail.action?s ...


              iNMATE'S ACCRUED GOOD CONDUCT TIME IS NOT AN ACCURATE REFLECTION OF THE
              INMATE'S POTENTIAL FOR REHABILITATION.

              9D2 DISCRETIONARY MANDATORY SUPERVISION -THE RECORD INDICATES THAT THE
              INMATE'S RELEASE WOULD ENDANGER THE PUBLIC.




               Next Parole Review Date
              0212015


               ... Ba~::k . .



              The Texas Department of Criminal Justice updates this information regularly to ensure that it is
              complete and accurate, however this information can change quickly. Therefore, the information
              on this site may not reflect the true current location, status, scheduled termination date, or other
              information regarding an offender.

              For questions and comments, you may contact the Texas Department of Criminal Justice, at (936)
              295-6371 or webadmin@tdcj. state. tx. us. This information is made available to the public and law
              enforcement in the interest of public safety. Any unauthorized use of this information is forbidden
              and subject to criminal prosecution.


                                           New Offender Search       TDCJ Home Page




I[
'I




                                                                                                                                   59
     2 of2                                                                                                               9/9/2014 11:10 AM
                                                                             THOMAS A   FILED
     !                                                                         TARRANfb~Q~'TYDIST.  CLERK
                                                                                               , TEXAs

                                      C-213-010293-1011284-B                        S~ fll12D14
                                                                            TIME   G:·fd
         EX PARTE                               §      IN THE 213th   JUDI~~ :Jt:: - DEPUTY
                                                §
                                                §      DISTRICT COURT OF
                                                §
         RODNEYELNESTOSNOLEY                    §      TARRANT COUNTY, TEXAS

                STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT
                            AND CONCLUSIONS OF LAW
               The State proposes the following Memorandum, Findings of Fact and
         Conclusions of Law regarding the issues raised in the present Application for Writ of
         Habeas Corpus.


                                          MEMORANDUM

               The applicant, RODNEY ELNESTO SJ\1ILEY ("Applicant"), alleges that he

         is being unlawfully confined ( 1) his rights to due process was violated when TDCJ' s

         notice was given and BPP' s vote was taken more than 2 years after he became

         eligible for mandatory supervision release and (2) his due course of law rights were

         violated when TDCJ's notice was given and BPP's vote was taken more than 2 years

         after he became eligible for mandatory supervision. See Application, p. 6-9.

               In light of Applicant's contentions and the evidence presented in the Writ

         Transcript, the Court should consider the following proposed findings of fact and

         conclusions of law:




                               SCANNED                                                            60
 i
II
' ''



                                    FINDINGS OF FACT

       General Facts

       1.   Applicant pled guilty, pursuant to a plea agreement, to the third degree felony
            offense of injury to a child with intent to cause bodily injury. See Judgment,
            No. 10112840.

       2.   In accordance with the plea agreement, the State waived the habitual offender
            notice and the trial court sentenced him to ten years confinement in the Texas
            Department of Criminal Justice -Institutional Division. See Judgment.

       3.   Applicant did not appeal his conviction. See Criminal Docket Sheet, No.
            1011284D.

       4.   Applicant's first application for writ of habeas corpus was dismissed for non-
            compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-
            213-010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for
            publication).


       Mandatory Supervision

       5.   Applicant alleges that he was not timely reviewed for release to mandatory
            supervision in 2010. See Application, p. 6-9.

       6.   Applicant was reviewed for release to mandatory supervision in April, 2013.
            See Application, p. 7, 9; Memorandum, Exhibits B-1 and G.

       7.   Applicant was reviewed for release to mandatory supervision in February,
            2014. See State's Response, Attachment A: Parole Information Review,
            TDCJ-ID No. 00693698.

       8.   Applicant was denied release to mandatory supervision in 2013 and 2014. See
            Application, p. 7, 9; Memorandum, Exhibits B-1 and G; State's Response,
            Attachment A.

       9.   Applicant is set for review for release to discretionary mandatory supervision
            in February, 2015. See State's Response, Attachment A, p. 1, 2.



                                                2                                             61
     10.   Because Applicant has been reviewed for release to mandatory supervision
           twice since the date he alleges he was not timely reviewed, Applicant's claims
           are MOOT.

                                CONCLUSIONS OF LAW

     General Law

     1.    In a habeas corpus proceeding, the burden of proof is on the applicant. Ex
           parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must
           prove by a preponderance of the evidence that the error contributed to his
           conviction or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex.
           Crim. App. 2001 ).

     2.    Relief may be denied if the applicant states only conclusions, and not
           specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App.
           2000). In addition, an applicant's sworn allegations alone are not sufficient
           to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim.
           App. 1988).


     Mandatory Supervision

     3.    "Given the repeated failures to provide adequate and timely notice to this
           particular applicant, we conclude that applicant is entitled to the specific
           habeas corpus relief that he has requested - a new review 'as soon as
           possible."' Ex parte Retzlaff, 135 S.W.3d 45, 51 (Tex. Crim. App. 2004).

     4.    Because Applicant claims he was not given a timely review for release to
           mandatory supervision, the relief would be a new review as soon as possible.

     5.    Because Applicant has been afforded two reviews for release to mandatory
           supervision since the date he complains he was denied timely review, his
           claims are MOOT.

     6.    This Court recommends that Applicant's first ground for relief be
           DISMISSED AS MOOT.

     7.    This Court recommends that Applicant's second ground for relief be
           DISMISSED AS MOOT.


                                              3                                             62
li
           WHEREFORE, the State prays that this Court adopt these Proposed Findings

     of Fact and Conclusions of Law and recommend that Applicant's application be

     DISMISSED AS MOOT.

                                                 Respectfully submitted,

                                                 JOE SHANNON, JR.
                                                 Criminal District Attorney
                                                 Tarrant County
                                                  ~
                                                 Andrea Jacobs
                                                 Assistant District Attorney
                                                 State Bar No. 24037596
                                                 401 West Belknap
                                                 Fort Worth, TX 76196-020 1
                                                 Phone:       817/884-1687
                                                 Facsimile: 817/884-1672

                              CERTIFICATE OF SERVICE
           A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto
     Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel
     for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on or before the 9TH day of
     September, 2014.

                                                 Andrea Jacobs

                           CERTIFICATE OF COMPLIANCE
,,
1

'          The total number of words in this State's Proposed Findings of Fact and

     Conclusions of Law, combined with any State's Response, is 1818 words as

     determined by the word count feature ofMicrosoft Office Word 2010.


                                                 Andrea Jacobs


                                             4                                            63
                              C-213-010293-1011284-B

EX PARTE                               §     IN THE 213th JUDICIAL
                                       §
                                       §     DISTRICT COURT OF
                                       §
RODNEYELNESTOSNULEY                    §     TARRANT COUNTY, TEXAS

                                      ORDER
       The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests be DISNUSSED AS MOOT. The Court further orders and
directs:
       I.    The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.
       2.    The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas
77342 (or to Applicant's most recent address), and to the appellate section of the
District Attorney's Office.


SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _, 2014.



                                                    JUDGE PRESIDING




                                                                                        64
                                                         •    C-213-010293-1011284-B
                                                                                                     "-
                                                                                                     •



                                                                                                          TIME~
                                                                                                                          FILED
                                                                                                          HOMAS A WILDER, DIST. CLERK
                                                                                                           TARRANT COUNTY, TEXAS

                                                                                                                 SEP 18 2014
                                                                                                                     v
                                                                                                                          a..· D c:::
                                                                                                                           ./
                                                                                                          BY~-.~--~~""?'~-0-E-PUTY__...

      EX PARTE                                                                      §   IN THE 213th JUDICIAL
                                                                                    §
                                                                                    §   DISTRICT COURT OF
                                                                                    §
      RODNEYELNESTOSN.ULEY                                                          §   TARRANT COUNTY, TEXAS

                                                                                    ORDER
                      The Court adopts the State's Memorandum, Findings of Fact and Conclusions
      of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
      ("Applicant") requests be                              DISM1SS~J),~S              M:oor.. The Court further orders and
      directs:·
                  . f.     < ..       The Clerk of this Court to file                   th~se frridfugs ancl transmit them along
      with the Writ Transcript to the Clerk of the CoUrt of Criminal Appeals as required by
      law.                        ;   •,.



                      2.              The Clerk of this Court to furnish a copy of the Court's findings to
      Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
      Kenneth Nash; at State Counsel for Offenders, P;O. Box 4005·, Huntsville, Texas
      77342 {or to Applicant's most recent' address), and to the appellate section of the
      District Attorney's Office.
        '•.   ;   >




I'l




                                            :.     :.
                                                                                                                  .   .



                                                 . ..··. '      .   . ..... -~ '·




                                                                                                                                        65
                                                 . r.
                              ':'   .·   .··.




        Certified True Copy




                                                                                                                     .   ;   !




       THE STATE OF TEXAS ·                                      '   )   ~   .




       COUNTY OFTARRANT                                                                         §
                                                                                                                                 ·.:.·




        I, Thomas A .. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certifY that the above and
foregoing is a true and co~ectcdpy ALL PROCEEDINGS HAD.
                                                of                               .    .                 .



                                                      In Writ Number: C-21,3-010293-1011.284-B



                                                     EX PARTE:       :Jl~DNEY                       ELNESTO SMILEY
                                                                                               vs.
                                                              THE STATE OF TEXAS



      as the sa.rrie appears on the file and/or record in my said office.


      GIVEN UNDER MY HAND and seal of Said Court at office in the City of Fort. Worth,
      Tarrant County, Texas, this the                z.? , day of~~.D.25V7 7£ .


                                                                             .   :..   :: ::
                          ----'-------'----"-.~T~H=O=l\1A,S A. WIL='D=E=~R~. ....;..._-....,...----
                                                CLERK, DISTRICT COURTS, TA~NT COUNTY, TEXAS




                                                                                                                                         66
