WR-83,783-01 

IN THE COURT OF CRIMINAL APPEALS 

OF TEXAS 

I N RE THOMA S ALLE N SIMON , Relator 

O N APPLICATION FOR A WRIT OF MANDAMU S 

I N CAUSE NO . 42908 I N TH E 424TM DISTRICT COURT 

FRO M BURNET COUNT Y 

RESPONSE OF 

Hon. Wiley B. ^^Sonny" McAfee, District Attorney 

Real Party in Interest 

OFFICE OF DISTRICT ATTORNEY 

33^'' and 424'^ JUDICL ^ DISTRICTS 

Wiley B. McAfee, District Attorney 

P. O. Box 725, Llano, Texas 78643 

Telephone Telecopier 

(325) 247-5755 (325) 247-5274 

g.bunyard@co.llano.tx,us 

By: GaryW.Bunyard 

Assistant District Attorney 

State Bar No . 03353500 

ATTORNEY FOR REAL PARTY I N INTEREST 

WILEY B. "SONNY" McAFEE, DISTRICT ATTORNEY 

September 3, 2015 

Oral Argument is Waived 

WR-83,783-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 9/3/2015 1:36:05 PM

Accepted 9/3/2015 1:44:55 PM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 9/3/2015 ABEL ACOSTA, CLERK 
Identity Of The Parties 

Trial Court/Respondent 

Honorable Evan Stubbs 

424'^ Judicial District 

Burnet County Courthouse Annex (North) 

1701 East Polk St., Suite 74 

Burnet, T X 78611 

424coordinator@dcourttexas.org 

Counsel for Real Party in Interest - Wiley B. "Sonny" McAfee, District Attorney 

Gary W. Bunyard 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No. 03353500 

g.bunyard@co.llano.tx.us 

Real Party in Interest - Gary E. Prust 

Gary E. Prust 

Attorney at Law 

1607 Nueces St. 

Austin, T X 78701 

(512) 469-0092 

gary@prustlaw.com 

ii 
Counsel for Relator 

Tracy D. Cluck 

Attorney at Law 

12600 Hil l Country Blvd., Suite R-275 

Austin, T K 78738 

(513) 329-2615 

State Bar No . 00787254 

tracy@tracyclucklawyer.com 

O f Counsel for Relator 

L. T. "Butch" Bradt 

Attorney at Law 

14015 Southwest Freeway, Suite 4 

Sugar Land, T X 77478-3500 

(281) 201-0700 

State Bar No . 02841600 

ltbradt@flash.net 

Relator 

Thomas Allen Simon 

SO #26546 

Burnet County Jail 

900 County Lane 

Burnet, T X 78611 

i ii 
Table Of Contents 

Page 

Index o f Authorities vi 

Statement of the Case 1 

Statement on Oral Argument 1 

Statement on Jurisdiction 1 

Response to Issues Presented 2 

Statement of the Facts 3 

Summary o f the Argument - Response to Issue No . 1. 

l.a. The Respondent has the authority to remove appointed 

counsel when the Respondent has made a finding of 

good cause that is entered on the record 5 

l.b. Where the Respondent has authority to remove 

appointed counsel for good cause that is entered 

on the record Mandamus will not lie 5 

Argument on Response to Issue No . 1. 

1.1. Principals o f Law 7 

1.2. Applicable Facts 8 

1.3. Discussion and Conclusion 8 

iv 
Summary o f the Argument - Response to Issue No . 2. 

2.a. The Real Party in Interest neither joins nor opposes 

Issue No . 2 because the Court's order entered on 

August 26, 2015, to stay further proceedings in the 

underlying cause until this application for writ o f 

mandamus is resolved effectively renders this 

Issue moot 10 

Argument on Response to Issue No . 2. 

2.1. None Presented by Real Party in Interest 10 

Prayer for Relief 11 

Certificate of Word Count 11 

Certificate of Service 12 

V 
Index Of Authorities 

Case Law Page 

Braxton v. Dunn, 803 S.W.2cl 318, 320 (Tex.Crim.App. 1991). 7 

Ex parte Billy Burl Clayton, 171 Tex. Crim. 398; 

350 S.W.2d 926 (Tex. Crim. App. 1961) 8 

Stotts V. Wisser, 894 S.W.2d 366 (Tex. Crim. App. 1995) 9 

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 

(Tex.Crim.App. 1981) 7, 9 

TPwmas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977) 7 

Constitutions 

U.S. Const, amend. V I 7 

U.S. Const, amend. XI V 7 

Statutes/Rules 

Tex. Code Crim. Proc. Art. 26.04 7 

Tex. Code Crim. Proc. Art. 26.04 (j) (2) 7, 8 

Tex. Disc. R. o f Prof. Cond. Rule 303 (a) (1) 8 

v i 
statement Of The Case 

Counsel for the Relator has adequately set forth the Statement o f the Case except 

that Relator was arrested and later indicted for the offenses of Sexual Assault and 

Aggravated Assault Causing Serious Bodily Injury. Relator was never charged nor 

indicted for Aggravated Sexual Assault. These charges are pending and awaiting 

trial subject to the resolution o f this application for writ of mandamus. 

Statement on Oral Argument 

The undersigned waives Oral Argument. The undersigned does not believe 

that Oral Argument will be beneficial for this case for the reason that the issues are 

straight forward and lack any novel or complex nuances. Should the Court believe 

that Oral Argument will assist the Court in any way, the undersigned will gladly 

accommodate the Court. 

Statement on Jurisdiction 

While not conceding the right to relief. Real Party I n Interest acknowledges the 

jurisdiction o f this Court as set forth by Counsel for Relator. 

1 
Respons e To Issues Presented 

Response To Issue No . 1: 

l.a. The Respondent has the authority to remove appointed counsel when the 

trial court has made a finding o f good cause that is entered on the record. 

1. b. Where the Respondent has authority to remove appointed counsel for 

good cause that is entered on the record Mandamus will not lie. 

Response to Issue No . 2: 

2. a. The Real Party in Interest neither joins nor opposes Issue No . 2 because 

the Court's order entered on August 26, 2015, to stay further proceedings 

in the underlying cause until this application for writ of mandamus is 

resolved effectively renders this Issue moot. 

2 
statement Of TIte Facts 

The Relator was arrested on March 24, 2014, for two counts o f Sexual Assault 

and one count of Aggravated Assault Causing Serious Bodily Injury. The Relater 

is not now and has never been charged with Aggravated Sexual Assault in regard to 

this case as is alleged in the Petition for Mandamus. The Respondent appointed 

Tracy D. Cluck on April 8,2014, to represent the Relator on these charges. A duly 

empaneled Grand Jury then returned an Indictment on June 3, 2014, charging the 

Relator with two counts of Sexual Assault and one count of Aggravated Assault 

Causing Serious Bodily Injury. 

As described by Counsel for the Relator, Tracy D. Cluck filed ex parte motions 

seeking funds for the employment o f a medical expert and for additional funds for 

investigative services. The Respondent called for an ex parte hearing on these 

motions. RR Vol. 1 Page 4. Present at this hearing was Tracy D. Cluck and the 

Relator. RR Vol. 1 Page 4. I n presenting the reasons for the funds being requested 

Tracy D . Cluck informed the Respondent that he would not be able to provide the 

Relator effective assistance o f counsel without the funds. RR Vol. 1 Pages 4-8 . 

In making the decision to remove Tracy D . Cluck as counsel for the Relator, the 

3 
Respondent stated that the Respondent was not going to put Mr. Cluck in a position 

where he would feel like he was being ineffective. RR Vol. 1 Pages 11 - 12. 

Specifically the trial court held: 

"THE COURT: I'm not removing you because you've requested the additional 

funds. What you're stating to the Court is that without those funds you don't 

believe you can - you can provide effective assistance of counsel. That's 

specifically ~ 

"MR. CLUCK: Well, what -

"THE COURT: Hang on. 

"MR. CLUCK: Go ahead. I'm sorry. 

"THE COURT: That's specifically what you said and I want someone else to 

look at this case." 

RRVollPagel2 . 

Later in the day the Respondent appointed Gary Prust as new counsel for the 

Relator. 

4 
Summary Of The Argument on 

Respons e to Issue No. i 

l.a. The Respondent has the authority to remove appointed 

counsel when the Respondent has made a finding of good 

cause that is entered on the record, 

l.b. Where the Respondent has authority to remove appointed 

counsel for good cause that is entered on the record 

Mandamus will not lie. 

Relator complains that the Respondent did not have good cause to remove 

Tracy D . Cluck as Relator's appointed counsel. However, Mr. Cluck had expressed 

to the Respondent his belief that he was unable to provide effective assistance of 

counsel unless the Respondent granted the funds requested. The Respondent (a) 

was not in the position o f granting the funds requested due to the excessive nature 

of the request, (b) was aware that none o f the other three attorneys representing the 

three co-defendants had expressed such an excessive request, ( c) had extensive 

personal experience in representing clients acting in the role o f a criminal defense 

attorney for court appointed clients prior to being elected to the bench, and (d) was 

sufficiently aware of the facts of the instant case to believe that the level o f funds 

requested was excessive. For these reasons the Respondent had concern that i f the 
excessive requests were not granted, Mr. Cluck would move forward to trial of the 

case under conditions that would create an appellate argument for ineffective 

assistance o f counsel and thus, potentially require a second trial at the expense o f 

judicial economy and the taxpayers of Burnet County. 

6 
Argument On Respons e to issu e No. 1 

1.1 Principals of Law 

Where a person accused of a crime is indigent the trial court is obligated to 

appoint competent counsel to represent the person. Tex. Code Crim. Proc. Art. 

26.04; U.S. Const, amend, V I and XIV; Thomas v. State, 550 S.W.2d 64, 68 (Tex. 

Crim. App. 1977). 

Where counsel has been appointed to represent a person, the court has the 

authority to remove and replace said appointed counsel i f the court makes a fmding 

of good cause that is entered on the record. Tex. Code Crim. Proc. Art. 26.04 0 

(2). 

Mandamus relief is available only when the relator can establish two things: first, 

that no other adequate remedy at law is available; and second, that the act he seeks 

to compel is ministerial. Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.CrimApp. 

1991). An act is ministerial "when the law clearly spells out the duty to be 

performed .. . with such certainty that nothing is left to the exercise o f discretion or 

judgment." Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420,424 (Tex.Crim App. 

1981). 

7 
An attorney shall not knowingly make a misrepresentation o f fact to the court. 

Ex parte Billy Burl Clayton, 171 Tex. Crim. 398; 350 S.W.2d 926 (Tex. Crim. App. 

1961); Tex. Disc. R. of Prof Cond. Rule 303 (a) (1). 

1,2 Applicable Facts 

I n this case, Mr. Cluck sought approval of the Respondent for additional funds 

in an unusually large amount for a medical expert and for additional investigation. 

RR Vol. 1 Page 4. In presenting his argument to the Respondent, Mr. Cluck stated 

that he would not be able to provide effective assistance o f counsel, or at least was 

concerned about his ability to do so, without the requested funds. RR Vol. 1 Pages 

4-8 . Expressing concern about Mr. Cluck's apparent inability to provide the 

Relator with the standard o f representation required by law unless the request for 

excessive funds was granted, the Respondent determined it necessary to remove Mr. 

Cluck as counsel for Relator and appoint other counsel. RR Vol. 1 Pages 11-12. 

IJ Discussion and Conclusion 

Whether mandamus should lie in this matter is determined on whether the 

Respondent did or did not have good cause to remove Tracy D. Cluck as counsel for 

the Relator in accordance with Tex. Code Crim. Proc. Art. 26.04 (j) (2). I f the 

reasoning of the Respondent did not rise to the level o f good cause then the 

8 
Respondent was without authority to remove Mr. Cluck as Relator's counsel. Stotts 

V. Wisser, 894 S.W.2d 366 (Tex. Crim. App. 1995). Yet i f the Respondent's 

reasoning does constitute good cause then the relief o f mandamus is not available. 

Texas Dept. of Corrections v. Dalehite, supra. 

The Respondent in this case had before it a clear statement o f fact from Mr. 

Cluck that he would not be able to perform his duties to the standards required by 

law unless the Respondent approved his request for funds. With this, the 

Respondent had to choose one of two conclusions. Either Mr. Cluck was 

knowingly making a false statement of fact to the Respondent in order to coerce 

funds from the Respondent, an action which would be in violation o f Rule 303 (a) 

(1) o f the Rules o f Disciplinary Conduct, or Mr. Cluck's statement was true. 

Considering that the Respondent did not take disciplinary action against Mr. Cluck 

for making a false statement to the court, it can be presumed that the Respondent 

determined that Mr. Cluck's statement about being unable to perform his duties to 

the standards required by law unless the Respondent approved his request for funds 

was true. 

The findings of the Respondent on the record in this regard were made not only 

from the direct statement o f Mr. Cluck but also from the fact that none o f the 

attorneys from the three co-defendants had informed the Respondent of similar 
excessive needs in order to perform their jobs (RR Vol. 1 Pages 12 - 13) and from 

the Respondent's own personal experiences in representing criminal clients in this 

jurisdiction (RR Vol. 1 Page 13) and from what the Respondent then knew o f the 

facts of the case (RR Vol. 1 Page 13). Based on these findings the Respondent did 

in fact act under the authority of Art. 26.04 (j) (2) in removing Mr. Cluck for good 

cause shown on the record for the protection of the rights of the Relator and as such 

the relief o f Mandamus is not available under these circumstances. 

Summary Of The Argument on 

Respons e to issu e No. 2 

2,a, The Real Party in Interest neither joins nor opposes Issue 

No. 2. 

N o argument is presented in favor or in opposition of Issue No . 2. 

Argument On Respons e to issue No. 2 

N o argument is presented in favor or in opposition o f Issue No . 2. I n as much 

as this Court has entered an order temporarily staying the proceedings pending 

resoludon o f this complaint, the Real Party in Interest believes that a Writ o f 

Prohibition is duplicitous, unnecessary, and moot. 

10 
Prayer For Relief 

Wherefore, Real Party in Interest, Wiley B. "Sonny" McAfee, District Attorney, 

prays the Court deny the relief requested by Relator and set aside the Court's order 

staying further proceedings in the underlying cause. 

Respectfully submitted, 

OFFICE OF DISTRICT ATTORNEY 

33^° and 424^^ JUDICIAL DISTRICTS 

Wiley B. McAfee, District Attorney 

P. O. Box 725 

Llano, Texas 78643 

Telephone Telecopier 

(325) 247-5755 (325) 247-5274 

Assistant District Attorney 

State Bar No. 03353500 

g.bunyard@co.llano.tx.us 

ATTORNEY FOR REAL PARTY I N INTEREST 

WILEY B. "SONNY" McAFEE 

CERTIFICAT E O F WOR D COUN T 

This is to certify that the pertinent portion of this brief contains 1,582 words 

printed in Aldine401 BT 14 font as determined by the WordPerfect X7© word 

count tool. 

Assistant District Attorney 

1 1 
CERTIFICAT E O F SERVIC E 

This is to certify that a true copy of the above and foregoing instrument, together 

v^ith this proof of service hereof, has been forwarded by EServe and by email on the 

3rd day o f September 2015, to Mr. Tracy D. Cluck, Attorney for Relator, at 

tracy@tracyclucklaw.com, and by EServe . 

uary^ . Bunyard 

Assistant District Attorney 

12