Pe tition for Writ of Habeas Corpus Page 1 No. ________________________ EX PARTE TIMOTHY WADE MITLEFF, Applicant IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: Comes now TIMOTHY WADE MITLEFF, Applicant, and files this Petition for Writ of Habeas Corpus. In support, Applicant shows the Court the following:
I. Applicant is current ly being illegally restrained of his liberty due to an order entered by the District Judge of the 8 th Judicial District Court, The Honorable Eddie Northcutt, Respondent.
II. On Friday, September 18, 2015, Respondent quadrupled Applicant ’ s bail. Previously, Respondent found Applicant to be indigent, and Respondent has never found that Applicant ever knowingly violated any court order while he was out on bail. As set forth below , Respondent’ s order raises a serious con stitutional due process issue

–

namely, Applicant’s right to prior, meaningful notice.Pe tition for Writ of Habeas Corpus Page 2 III

. Applicant is charged by indictment with Assault Family Violence/Impede Breath. See T EX
. P EN
. C ODE § 22.0 1 (b)(2)(B) . According to the indictment, a certified copy of which is attached hereto as Exhibit A , Applicant caused “bodily injury to ALISHIA MITLEFF” on or about “the 29 th day of March, 2015.” According to the indictment, Ms. Mitleff is “a member of [Applicant’s] family.” Ms. Mitleff is Applica nt’s wife.
I V. According to records from the Sheriff ’ s Office, Applicant was released on $25,000 bail on March 31, 2015. A certified copy of the bail bond is attached
hereto at Exhibit B

. V. Exhibit B contains no provision that prohibits Applicant from communicating or even living together with his wife.
V I

. Following his release on bail Ap plicant res umed living with his wife. During this time Respondent heard no evidence of any untoward activity by Applicant

– no threats, no calls to law enforcement about him , etc.

– at any time.Pe tition for Writ of Habeas Corpus Page 3 V I I. The Office of the District Attorney discovered that Ms. Mitleff and Applicant had resumed living together following Applicant’s releas e on bail. On September 2, 2015

– i. e., more than five months after Applicant had been released on bail

-- the State served and presented to Respondent a document titled Motion to Ad d a Condition to Defendant ’s Bond , a certified copy of which i s attached
hereto as Exhibit C . In the motion the State asks Respondent to enter an order prohibiting Applicant from h aving any contac t with his wife, never mind the five months that the two had been living together since Applicant ’ s release on bail

. VII I

. Respondent entered an order granting the State’s motion referenced in Paragraph V I I supra. See “ O rder Adding Bond Conditions, ” a certified copy of which is attached hereto as Exhibit D

. Respondent entered this order on September 2, 2015.
IX

. On September 2, 2015 Respondent verbally instructed the State to serve Applicant by hand with Exhibit D

. Respondent also wrote the following at the
bottom of Exhibit D

-- “ To be served by law enforcement

. ”Pe tition for Writ of Habeas Corpus Page 4 X. O n September 18 , 2015 law enforcement appeared before Respondent and testified that although they had made about seven attempts, they had been unable to locate and serve Applicant with Exhibit D

. X I

. Applicant eventually did receive Exhibit D . Applicant received Exhibit D on September 18, 20 15. That is because Applicant was in court on September 18,
2015. Applicant was in court in compliance with an order that he had previously received from Respondent

. See document titled Appearance and Announcement Form, dated August 2 1, 2015, a certified copy of which is attached hereto as Exhibit E , which required Applicant to appear in court on September 18, 2015.
X I I

. On September 9, 2015 , the State filed a document titled Motion to Hold Bond Insufficient and Increase Bond, a cert ified copy of which is attached hereto

as Exhibit F

. On page 2 of Exhibit F , the State asks Respondent to increase the $25,000 bail bond to $100,000.
X III

. On September 18, 2015 Respondent held an evi dentiary hearing on the record on the State’s motion r eferenced in Paragraph X II supra.Pe tition for Writ of Habeas Corpus Page 5 XI V

. After hearing the evidence, Respondent stated from the bench that he believed Applicant had been aware that law enforcement had been trying to serve
him with Exhibit D , and that Applicant had been evading ser vice. R espondent then stated on the record that he lacked “confidence” in Applicant’s wil lingness to follow orders.
X V

. Respondent granted the State’s motion to quadruple Applicant’s bond

– specifically, from $25,000 to $100,000. A certified copy of docu ment titled Order Setting Bond is attached hereto as Exhibit G

. XVI. Respondent entered the order referenced in Paragraph XV supra -- A. EVEN THOUGH Respondent had previously made a written finding that Applicant was indigent. See certified copy of
document titled Affidavit of Indigence , attached hereto as Exhibit H
at page 3.
B. EVEN THOUGH Applicant had appeared in court on Friday, September 18, 2015 in compliance with a prior order entered on August 21, 2015 by Respondent. See Exhibit E (“Appearance andPe tition for Writ of Habeas Corpus Page 6

Announcement Form”).
C. EVEN THOUGH b e fore September 18, 2015 Applicant
had complied with at least two (2 ) prior orders from Respondent requiring him to appear in court. See Exhibit I , which contains two (2) documents, both of them ti t l ed Appearance and Announcement
Form , which Respondent ente red on the following dates

-- July 10 , 2015, and August 7, 2015, respectively.
D. EVEN THOUGH the trial court’s file contains no evidence that Applicant had ever failed t o appear in court pursuant to

an y order entered by Respondent.
E. EVEN THOUGH Resp ondent heard no evidence of any untoward or nefarious conduct by Applicant. See and compare Ex
p arte Beason, 1993 Tex. App. LEXIS 2341 (Tex. App.

– Houston [1 st Dist.] Aug. 23, 1993, no writ) ( held , amount of bail was excessive, where among other things th ere was no evidence of threats by appellant against others).
F

. AND EVEN THOUGH d uring the September 18, 2015 hearing n either Respondent nor the State had identified a single authority or source

– no statute, no court case (published orPe tition for Writ of Habeas Corpus Page 7

otherwise), no cou rt rule, and no bond condition

– that Applicant had violated during the five

- plus months while he was out on bail.
X VI I

.

“ The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty." Ex p arte Robinson, 641 S.W.2d 552, 553 (Tex. Crim. App. 1982) (citing statute). See e.g. Ex p arte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978)(writ of habeas corpus used to challenge increase in bail). In this case, A pplicant may use a pret rial writ , as opposed to an interlocutory appeal, to assert his constitutional protections with respect to bail. Ragston v. State, 424 S .W.3d 49 (Tex. Crim. App. 2014), followed in , Vanhalst v. State, 2015 Tex. App. LEXIS 8917 (Tex. App.

– Texarkana Aug. 26, 2015). See also e.g. E

x p arte Keller, 595 S.W. 2d 531 (Tex. Crim. App. 1980).
X V II I

. One constitutional protection is the right to due process, and o ne compo nent of due process is fair notice. This C ourt made this pla in when it quoted the U.S. Supreme Court on what due process means . See Hunter v. St ate, 1985 Tex. Crim. App. LEXIS 1726 (Tex. Crim. App. Oct. 23, 1985)(quoting Cleveland Bd. Of Educ. v. Loudermill , 470 U.S. 532 (1985), and Matthews v. Eldridge , 424 U.S. 319 (1972))

.Pe tition for Writ of Habeas Corpus Page 8 X IX

. Meaningful, proper notice is conspicuously absent here

. Before Sep tember 18, 2015, and even if all facts are c onstrued in Respondent’s favor, Applicant’ s only source for learning that the conditions of his bond may have changed does
not come from any a gent of the S tate. Rather, Applicant’ s only alleged source comes from the proverbial grapevine. If logic is any guide, g etting wind that some change is afoot in one’s bond conditions, even if true, does not satisfy any notion of due process

. See and compare Ex p arte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004)( held, written notice that an inmate’s parole will be reviewed at some unspecified time in the future, coupled with a request that inmate submit relevant materials "as soon as possible," was constitutionally deficient notice). Applicant’s level of notice , assuming for argument ’ s sake only there was any, would not even satisfy due process for a civil case. See e.g. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) ("Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgme nt against him."). See also e.g. Grasz v. Grasz , 608 S.W.2d 356 , 358 (Tex. Civ. App.

– Dallas 1980, no writ) ( “ mere notice that one has been sued does not obligate the defendant to appear and answer”). A fortiori , Respondent’s apparentPe tition for Writ of Habeas Corpus Page 9

r eliance o n the prov erbial grapevine, and nothing more, as the basis for quadrupling Applicant’ s bond can not possibly satis fy constitutional due process in

a case where Applicant’s liberty is at stake.
X X

. Applicant was together with his wife

-- without incident

-- f or more than five months before Respondent entered the O rder Adding Bond Condi tions , attached as Exhibit D , on Sep tember 2, 2015 . This is unremarkable and should cause no alarm, especially when n o agent of the State ever told Applicant and his wife they could not do thi s . If, more than five months after the fact, Respondent decides to enter an order upending this unremarkable arrangement and r equiring Applicant to separate from his wife

– indeed, requiring Applicant not even to communicate with his wife

– then Applicant should be abl e to rely on something more formal, more certain, and more concrete, than the rumor mill.
X XI

. Texas state law mandates that b ail can not to be use d as an instrument of oppression. T EX
. C ODE C RIM
. P. art. 17. 15 (2) . Unfortunately, that is the result of Respondent’s O rder Setting Bond ( E xhibit G ) entered on September 18, 2015. Q uadrupling Applicant’s bail because Applicant may have not followed up onPe tition for Writ of Habeas Corpus Page 10

stray remarks that he may or may not have heard from others, none of whom are even alleged to be agents of the State , falls far short of any seriou s notion s about constitutional due process.
XXII. Respondent’s O rder Setting Bond

-- entered on September 18, 2015, and a certified copy of which is attached hereto as Exhibit G

-- v iolates the Fifth and Fourteenth Amendments to the U.S. Constitution, as well as Article One, Se cti on 13 of the Texas Constituti on, because Applicant failed to receive meaningful notice. WHREFORE, Applicant prays that this Court grant this application for writ of habeas corpus and that this Court order Applicant discharged from the illegal restrai nt he is currently suffering. Dated: September 21, 2015 Respectfully submitted, By: __ /s/ Wade A. Forsman_ Wade A. Forsman State Bar No. 07264257 P.O. Box 918 Sulphur Springs, TX 75483

- 0918 903.689.4144 East Texas 972.499 .4004 Dallas/Fort Worth 903.689.7001 Facsimile wade@forsmanlaw.comPe tition for Writ of Habeas Corpus Page 11 Attorney for Applicant , Timothy Wade Mitleff Declaration Pursuant to section 132.001 of the Civil Practice and Remedies Code, my name is Wade A. Forsman, and I am the appointed attorney for the Applicant, Timothy Wade Mitleff . M y date of birth is June 14, 1058, and my work address is P.O. Box 918, Sulphur Springs, Hopkins County, Texas 75483

- 0918, United States of America. Executed in Hopki ns County, State of Texas, on this the 21 st day of September 2015

. /s/ Wade A. Forsman

___________________________ Wade A. Forsman

C ERTIFICATE OF S ERVICE This is to certify that on September 21, 2015 , I served a true and correct copy of the above and foregoing Petition for Writ of Habeas Corpus by email on Matthew Howard Harris , Assistant Dis trict Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.

__ /s/ Wade A. Forsman_ Wade A. Forsman