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### IN THE COUkT OF CRIMINAL j 

### APPEALS OF TEXAS

CAUSE NO. 306bOA-422

bARRYL RAYNARD GORDON (RELATOR) 1


## vs.
HON. JUDGE 

### B. MICHEAL CHI:fl:Y 

### 422nd. DISTRICT COURT OF 

### KAUFMAN COUNTY, KAUFMAN TK.**(~ESPONDENT.)** ,.



### ******************* *·1r* 

### **'* **:*'* *

## ****

## **********"':***·*
..****** ON PETITION FOR·WRIT OF MANDAMVS

### ***~~*~*************~*~~.*~***********************~******~.** ;· :**--"'~**

._·. . '· '·.



# ..**~** ..



### 3 JESTER Rd-11852766 RICHMOND, TX. 77406**P~O.'** 

### SE' .-,,_.

·.·· .... ,.**-~**....CAUSE NO:

IN RE: DARRYL RAYNARD GORDON § IN THE CRIMINAL Relator, § COURT OF APPEALS, § 

## v. § AUSTIN, TEXAS, § HON. B. MICHEAL CHITTY § Respondent, § PETITION FOR WRIT OF MANDAMUS
Comes now, DARRYL R. GORDON, Relator, to file this Petition for a WRIT OF MANDAMUS pursuant to the Texas Rules of Appellate**Procedur~** 52, and for good cause as Relator is illegallt restrainded and confined of his liberty in direct violation of the 

## u.s. and TEXAS CONSTITUTION, BEING HOUSED IN THE Texas Department of Criminal Justice Correctional Division , on thd. Jester·
.. 3 unit, Richmond, Tx, 77406. I. STATEMENT OF JURISDICTION Under Article**V~** Section 3 of the Texas Constitutiori and Section 22.002(a); of the Texas Gove:tment Code which grants the Supreme Court of Texas to issue a Writ of Mandamus.

II. PARTIES Relator, Darryl R. Gordon is an individual seeking Habeas corpus Relief in Criminal Cause: 30600A-422 Respondent, Hon. Judge B. Micheal Chitty of the 422nd·. District court of Kaufman county, Kaufman, Tx 75142

/· •.u



### ··.' III. HISTORY OF**PROCEDUR~(ing)** Relator, was indicted for the offence of**Eva~ing** ArreSt

. . ! with a Motor vehicle in Cause #30600; the offence was alledged to have been committed on or ab6ut November 17,2011 in Kaufman county, Kaufman, Texas. the court gave riotice of; intent to in:L

### ~·. 

## l .· A trial by jury was**~~ryducted** on Oci. 

# I enhance the punishment. 29 1 2012 and Relator was found guilty and sentenced to**Lif~** in the Texas Department Of Criminal justice. Relator would. file
an Appeal on March, 2012 and appeal would be Affirmed on November 19 1 2013 Cause # 05-12-01520-CR.**R~lator** wotild file a**P.D~R.** on December**31,~013** the same was refused on**~arch** 12,2014. Relator would file his.original Writ of Habeas corpus in j"une2014 and the Respondent would issue an order DESIGNATING ISSUES BASED ON THERE BEING. CONTROVERTED AND PREVIOUSLY UNRESOLVED FACTS,



# .>, .. In said order the Hon. Judge Chitty would order Affidavits from both the trial Attorney and Appellate Attorney. The order handed down on July 30,2014 gave the attornies until September 1,2014 to file said affi0avit and present a**~opy** to the counsel for the State. the State in the same ordei was given no more than**3~** days to file a reply brief in responce to the Relator's allegations including documentary evidence to support their finding. IV. ISSUES PRESENTED Relator will seek to prove by the record that the said order has**b~en** violated by the State as well as the Hon. Judge, the record has fallen silent after the said affidavit was filed by both Attornies,the Court has failed to take any action.

2.V. ISSUE ONE The DISTRICT COURT, Respondent, Abused it's discretion**~-=** by failing to perform a basic ministerial duty by.-pJ:O-f::.adhearing to the order of the court and. violating the appellate procedure. Argument and Authorities

Mandamus is an extraordinary writ that should be issued only when the Trial court has clearly abused it's**di~cretion,** or failed to perform a ministerial act or duty' and no adequate remedy of law exists. see:Walker 

## v. Packer,827 s.w. 2d 833 (Tex.l992). In addition, a writ of mandamus will issue to correct a clear abuse of discretion. see: In re Nitla S.A.,925 s.w.3d 419,422 (Tex.2002); see also Liberty Nat'l Fire Ins. Co. 

## v. Akin,927 S.W.2d 627,629 (Tex.l996}; accord Walker, 827 S.W.2d at 839, A**t~ial** court application of**leg~l** principle is reviewed for abuse of discretion seperately from it's resolution of factual disputes. ·Abuse of Discretion The Respdndent committed an error by not up holding order of the court or follow the rules set out in the Rules of Appellate procedure. According to 

## * Rules of Appellate Procedure,73.5; "Within 180 days from the date of reciept of the**appli~ation** by the State, the convicting court shall resolve any issue that the court has timeiy designated for rerolution, Any motion for an Extention of time ... must .be filed in theCourt Of Criminal Appeals before the 18lday
3.(

.

## ,. ·Abuse of Discretion cont's The record supports the fact that. Respondent is in violation of rule 73.5 of Rules of Appellate Procedure, in that there has been no reply from the State nor a Reccomendation by the**~espondenf** 

### in well over THREE HUNDRED, SIXT FIVE DAYS,(365). The Respondent has failed to respond to any objection made by the**R~lator** 

### over the past year. The Relator has written letters to the Respondent as well as the District Clerk with out a response. the record itself will show that the Respondent never filed for an Extention of time by the dead line of the 18lday and based on this Violation this writ of mandamus should be granted. ·Consequential Damages The Texas Constitution demands that i.t's habeas process be "speedy and**Effe~tual",** 

### Texas Constitution Artcle I § 

### 12. Through the failure of basic judicial ministerial acts the Respondent has caused the habeas process to be non-effectual. The record will prove that Relator's constitutional rights has been violated through every stage of this case, such as: Respondent failure to answer Relator's Motion for New Trail. Respondent failed to hold a Faretta hearing. Respondent failure to appoint requested counsel. Respondent failure to order a Competency hearing. Respondent failure to answer any objections. The record will show that Relator has no adeqriate way to vindicate the harm caused to him without Mandamus.

4.i

VI. CONCLUSION



### In**E~** 

### Parte Harleston,43l S.W.3d 67(Tex. Crim App. 2014) The court held that when receiving a habeas corpus finding of fact and conclusion of Law, We defer to those findings and conelusions if they are supported by the record, We refer to those findings by the record because habeas court is the original fact finder and in the best position to evaluate the credibility; However our deference is nor a Rubber Stamp and We can envbke our authority as the ultimate fact finder
.....when it's independent review of the record reveals that the trial Judge's findings and conclusion are not**support~d** 

### by the record. In this case the Relator petitions the Court to review the record against the exihibits presented here in. May Mandamus be Granted with out delay out of Fairness and repsect for the Rudimetary demands for Justice
.

. UNSWORN DECLARATION 

### I, 

# DBRt'2o/J

# '£. 6oRLfod T.

## D.c.J. 

### # 

# I**r,J~;J.-2/.t/o** 

# ,do hereby declare 

### under penalty of perjury that the facts here in are true and correct to the best of my knowledge.EXHIBITS 1. JUDGEMENT OF CONVICTION 2.0RDER DESIGNATING ISSUES 3.LETTER TO COURT OF CRIMINAL APPEALS 4.AFFIDAVIT IN FACK (DENNIS JONES) S.AFFIDAVIT APPOINTED ATTORNEY

CERTIFICATE OF SERVICE: This is to certify that on, 

# Odobe!c**~Nc/** ,2015, a true and correct copy of the above and foregoing writ of mandamus was placed in the u.s.mail to The Court Of criminal Appeals atP.O. BOX12308, Capitol Station, Austin, Tx.787ll

Pro' Se'COUNT
THE STATE OF TEXAS**~/** · 

# /'t v.

# /~"ibt DARRYL RAYN. STATE ID No.: TX-0::., CASE No. 30600-422 '' ·"··



### . FILE:D fOR RECORO § IN THE 422* &iStMMaiOitN

### t Y § .**'T£~~** § OF § § § 

### § JUDGMENT OF CONVICTION BY JUR Judge Presiding: HON. B. Michael Chitty**Da~e** Judgment Entered: 10/30/2012 Attorney for State: Mike Mclelland Offense for which Defendant Convicted: EVADING ARREST DETENTION WNEH Charging Instrument: Indictment Date of Offense: 11/17/2011 Degree of Offense: 3rd Degree Felony Verdict ofJurv: Guilty Plea to 1st Enhancement Paragraph: Not True Findings on 1'1 Enhancement Paragraph: True Punishe·d Assessed by: Jury Punishment and Place of Confinement: LIFE in TDCJ - ID Attorney for Defendant:
Statute for Offense: §38.04
Plea to Offense: Not Guilty ProSe

Findings on Deadly Weapon: was not Plea to 2na Enhancement/Habitual Paragraph: Findings on 2na Enhancement/Habitual Paragraph: Not True True Date Sentence Imposed: 10/30/2012 Date Sentence to Commence: 10/30/2012
THIS SENTENCE SHALL RUN CONCURRENTLY.

. .· •'**~** '""

.. D SENTENCE OF CONFINEMEJ4T SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR YEARS. Fine: Court Costs: Restitution: Restitution Payable to: $-0- $329.00 $-0- n/a [X] Attachment A, OrdertoWithdraw Funds, is Incorporated Into thisjudgmentand made a part hereof. Sex Offender Registration Requirements do notapply to the Defendant. Tex. CooE CRIM. PRoc. chapter 62. The age ofthe victim at the time ofthe offense was n/a. If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order. From 11/17/11 to 11/18/11 From 3/27/12 to 3/27/12 4/5/12 to 4/10/12 5/19/12 to 10/30/12 Time Credited: If Defendant is to serve sentence in county jail or Is given credit toward fine and costs. enter days credited below. DAYS NOTES: N/A All pertinent information, names and assessments indicated above are Incorporated Into the language ofthejudgment below by reference. This cause was called for trial in Kaufman County, Texas. The State appeared by her District Attorney. Counsel/ Waiver of Counsel (select one) [ ] Defendant appeared in person with Counsel. 1 [X] Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing In open court. It appeared to·the Court that Defendant was mentally competent and had pleaded as shown above to the charging instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENTwas read to the jury, and Defendant entered a plea ·to the charged offense. The Court received the plea and entered it of record. The jury heard the evidence submitted and argument ofcounsel. The Court charged the jury as to its duty to determine the guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury**~elivered** its verdict in the presence of Defendant and defense counsel, if any. The Court received the verdict and ORDERED it entered upon the minutes ofthe Court. PunishmentAssessed by Jurv I Court I No election (select one) 

### 83 I 

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### i

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# :**~~- ~** **z~~~-=.~~.** 

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### :X
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### 30600A-422

1'1**~-··** -..L.-0 

### IN

## TH~42~**'JUi2jCIAL<**

## 5

. DEFENDANT'S -< w \, :.·· 

### EX PARTE EXHIB\1 f). 

### DISTRICT COURTOF DARRYLRAYNARDGORDON**~** 

### . .**;~~,-** 

## ----=------ I**~** ' 

### ·KAUFMAN**COU~_JTY,.**

### TEXAS
..**~** '·:" ,.:.

. ·.-:':

.. 

### ORDER DESIGNATING ISSUES AND GRANTING THE STATE**-~,.,**

### .. · LEAVE TO FILE AN AMENDED ANSWER
.

..., ·

.........**~** AFTER 

### FURTHER**EVll)F~~f.CEJS~GATHE.R_EJ}** 

### Pursuant to article 11.07(3)(d) ofthe Texas Code ofCriminal'Procedure,
...

# th~~ourt**-·~** . 

### finds that from the application for writ ofhabeas c9rpus filed bythe applicant,- there exist , controverted and previously unresolved fact issues that are material to the legality ofthe applicant's confinement. The Court further finds and designates that these issues. of facf

. ,I • 1**~** '• 1 r ' • 

### to be resolved concern: 1.
2. Whether his waiver ofcounsel was involuntary because he was incompetent to stand trial; and

'
. 

### Whether the applicant was denied the effective assistance of trial and appellate counsel because trial and appellate counsel failed to file motions to determine applicant's competence and because appellate counsel failed to assert as a point oferror trial cour.sr l's failure to contest**competene<~. ~-,**  . r' r· ·

··--.r .... ',• · -r1, .-/ r'
.. ' ' t.-**--~,-:..,_·** ?<'- .J." • .:.**-~',,;.A:-t:,~.~io,_·•f'~·** 

### ,_ ., Therefore, pursuant to article**11.07(~** J\

### d),jthc Court will resolve the above-citffi1:::
... ·-.**-~-~·** ' '**·~:~~ ~-:**  ' . ' 

### issues and enter findings offact. To aid the Court in resolving the above-cited issues,**the\~.~:-** 

### ., .

. f ,·"':·i)
...... :.- 

### Court orders that the app-licant's appointed counsel, Michael Harris and Dennis Jones, I 

### prepare and file affidavits responding to the issues set out above. Mr. Harris and Judge

, I 

### Jones are ordered to file such affidavits on or before September 1, 2014, and to tender



## . I copies oftheir affidavits to counsel for the State. The State shall be pennitted to file an 

## I
.



## ... 1 I**--~**

# r

. :.' 1.' •**,~** 

# 'r

,, 1


### .., fl'
4 

### /l I

# ~**~** amended answer m response to the applicant's allegations, including documentary evidence in support thereof, and such amended answer shall be filed by the State at a reasonable time not later than 30 days after defense cpunsel file their affidavits with this

. Court. The Clerk of the Court is therefore ORDERED 

### to transmit a copy ofthis order

designating issues to the
.Court of Criminal**~ppeals.** 

### The Clerk of the Court is**~.** -·-·-

### ~-·· ·:-.r::-....-:.::. ...

### >~ .!._, \,...,.
. ··'·

### ··~...,. ,, .•, . .

### -~·.**~** ' 

### ORI)ERED NOT 

### to tnins[llit at this time any other·documents in the above-styled case to



## L\**~~**

'>. 

### the Court ofCriminal Appeals until further ordered by this Court. The Clerk ofthe Court is further ORDERED 

### to transmit a copy ofthis order to applicant, to attorney Michael Harris, to Judge Dennis Jones, and to the Kaufman County Criminal District Attorney's Office.



# . .. Jv

. SIGNED 

### thisJo day ofJuly 2014. 

# I

... '**~** :-'"-·. 

# -
.... ..•· ":fl··



### fl." i

### ! 

# I/.

I 

### ... .._...,_ 

## Rhonda Hughey**~[:iH~·**

# hir District Clerk 

# 3 Kaufman-County·

Court ofCriminal Appeals 

### 12308 Capitol Station Supreme Court 

### Building**.h.·..:~!~r., Tex~~-**  

### 78711
. R.E: Cause No. 30600A-422 Ex Parte: Darryl Raynard Gordon 

### Dear Clerk, July 3L 2014 County Courthouse 100 W Mulberry St. Kaufman, Texas 75142 972-932..0279

-'.**~ ·--..._,.,...--..-~---.** **----:-'-····-~**

Enclosed please find the Clerk's Record for Writ ofHabeas Corpus 

### to be filed in your 

### C<;)Urt 

### regarding the captioned cause. 

### If you have any questions. please contact our office.

Rhonda Hughey District Clerk 

### Kaufman County, Texas RH/dvv· Cc: Erleigh Norville Wiley, District Attorney 

### Darryl Raynard Gordon, 

### Applicant Michael 

### Harris. 

### Attorney Judge Dennis Jones

...

·--- 

### ....**-~**

..

### --,) · ..

. .**~.** .. ( ... r'

# ~t

.I -.;'·j:,

....

, 

## Ex Parte Darryl Raynard Gordon 

## 30600A 422

j i I ' ' l i ·.' ' 

### . . \:.;



## In the 

## 422nd

## Di~rict Court**~** • • • • •• . • 1 -' - 

## Kaufman County Texas m**~ ~-~**  

### -<

### CJ~ :;

### ~~ o c:::**~o** 

# =**~ _..:x~** 

## AFF~DAVITIN 

## FACT**-~** 

## ]:..**~~~**

. .**n~** 

### .**o~** t rc.'·· :J'liO ".!'Or" :::J ,., --- :::1: ::: (": 

## r,riy**·;1ain~;;** 

## is Denn:s Jor.es 

## and I :am 

## a licensed 

## attorney in the.; Stite**o~ ~i:,**  

### . . . \ c . "
.. 

## Texas. 

## I am currently 

## the presiding judge in the County Co:Qrt at**La~#** 1·<r 

## Kaufman County Texas. I 

## have 

## been practicing law since ·1979 

## primarily in the 

## area ·of criminal taw-both trial and appetlate. I was the appellate attorney in the above numbered cause appointed·· to represent Mr. Gordon in November 

## 2012. I completed the brief on his -,. behalf 

## and submitted _it to the appellate court. Before the appellate court's opinion came out, 

## I was appointed 

## to 

## the CCL bench. The trial court allowed me to withdraw my appellate representation and.the trial court ·appointed. another attorney as appellate counsel. From beginning to

end, I personally met with Mr. Gordon at 

## least twice. ·Most of 

## my cc;>mmunication was by correspondence. 

## I received· ?PProximately/ 

## at least 

# ·: •:eight (8} letters from Mr. Gordon _and 

## .I responded about the same.

## -·~ou~in9·.rDY face to

## fac~ ,mee.ttn.gs, I thought and believed
..Mr. Gordon to be

# ~-,.·-·-~~~--.. ·

..

# ~e-~s?~a'~ie,..,

# c.o~~~~iCJ.~i~~~~~~;~~;it~\~~.**~-:' J_~_iidg_.:** **n~,<;?.t hav~.·**  any trouble

# a.~

... · understano1ng w·na·c 

## n'.:a

## salu·--~.-w-~--·d···:~**""-"'~-~~,...~**...."'

## ~- ....··aarl 

## r f.··u •nrl

.. . l**,~** 1 __ ,,,, I ,,:.li I'
. 1 tl:cu v:Y.n.:;;P<·;;·'-..-.J. 0 ·:;;:.·:••**>''-·-~-......** · ... ,**~-** .... ,. :;..;. -'"""·.______.



## .\ · him to be

# abov~~aver~~e**in.t~1Jig.en~~actuqUy h~**  wa_s pretty sharp
.. The ·

.·

:· letters that L-received from.c-hi·m were the same (i.e. focused,
·

# understarid~~le,**dilig~nb.** ·· N,ever in my

# dur~tioh of his representation did I

• . ·4
. 

## ever feel that 

## Mr. Gordon**w~s** 

## incompetent.: 

## From my read_ing ofthe ;.ir .,stater,-tent 

## of facts, I be!ieved**th(:~t:** 

### Mr: 

## Gordon**wa~** 

## competent. I did not**~:r.ft{f.~** . t ' '"" ) 

## " .; assert as a point of error the trial counsel's failure to contest competence

.,

## becaus~ I did 

# hot-believe the evidence supported such a point of error. I

... -;

I
..

.**~ ~** ...

.. -. f
.

- ·-f· ' ' " 

### ' 

# tl_

·. l

## did not ever file a motion to determine competence of Mr. Gordon because I did not feel that he was incompetent. This affidavit is true and correct to the best of 

### my 

## knowledge. Dennis 

## Jones

-r.: •'

# ,

.·0./

# ~**~lillo,}-:** 

# ""'

# ~, II 

## ---- _)
EX PARTE DARRYL RAYNARD GORDON

,,.**··~**


### CAUSE NO. 30600A-422 

### )( )( )( )( )(**201~** 

## AUG -7 AM 8: 58 INTHE422ND



### ..... il1='PUTY



# ..,.,. ...**~s** 

### FORMERCOURTAPPOINTEDA'ITORNEY'SAFFIDAviT COMES NOW MICHAEL RAY HARRIS, former. court appointed attorney for the applicant Darryl Raynard Gordon in the above-referenr-.ed case who files this· 

### affidavit in response 

### to the courtorder issued onJuly 30, 2014 

### to 

### hdp resolve the following issues offa<..-t: ISSUE 1. · Whether 

### the applicant's waiver 

### of counsel 

### was involwttary· because he was incompetent 

### to stand trial; and**~·.** J
....,-. ISSUE 2. Whether the**applicanf~as** 

### denied the effective 

### assistance of trial 

### and appellate counsel because 

## trial and appellate counsel failed· 

### to assert as a point of error 

### trial counsel's failure to 

### contest competence. 

### 1. Kaufman County originally 

### appointed.$-e affiant to represent Darryl 

### Raynard Gordon for
.. · the charge of Unlawful 

### Use of,i;i_Motor Vehicle. The affiant 

### immediately suspected Darryl



### Raynard Qordon was 

### .an Antisoeiat Personality Type. The symptoms of this disorder are: ····.. ·irresponsible,**de~itful.** poor 

### regard for rights ofothers, lack of

### empathy and remorse, 

### violates social norms, and exploitive. 

### The Darryl RAynard Gordon's 

### behavior since the time ofthe. 

### original appointment continues 

### to support 

### a diagnosis ofAntifiocial 

### Penonality Disorder. The affiant does not believe anAntisocial**P~nality** 

### Disorder supports a claim of

### incompetence to 

### stand trial and/or voluntarily waiver of

### counseL
Vehicle while working as a Confidential Informant for 

## the Terrell Police Department 

### lhe affiant persuaded Assistant District AttOrney Shelton Gibbs to release the afftant on a personal recognizance 

### bond
.. The affiant subsequently got arrested 

### by the same police officer he 

### worked for as a 

### confidential informant for an Armed 

### Robbery that affiant heard Darryl 

### Raynard Gtirdon later plead 

### guilty to. 

### 3. The 

### Kaufinan County District 

### Attorney's office reassigned the affiant's cases 

### to Mark Hasse who told the affiant 

### that there were four possible felony charges 

### against the affiant 

### with two prior felony convictions resulting 

### in 

### penitentiary sentences. This meant 

### Darryl Raynard Gordon faced possible punishment 

### of 25 

### to 99 years 

### iri the penitentiacy under the Habitual Offender 

### sectionS ofthe Texas Penal 

### Code. The affiant sent a letter 

### to Darryl 

### Raynard Gordon that Mark Hasse 

### planned to keep taking his cases to trial 

### until getting a long 

### prison sentence.. •'' ..... , .-...,.·

# -
\
4. Darryl Raynard Gordon claimed he was entitled to ..a lawyer who believes 

### in me." The 

### affiant told Darryl Raynard Gordon his job 

### as a court appointed lawyer was to tell defendants what the 

### needed

### to hear-not what they 

### wantedto hear. Darryl Raynard Gordon proceeded to be as difficult as possible for the affiant. The affiant told Darryl Raynard Gordon he was free to hire another attorney to take over the case. Yet the affiant was not going to merely pass a problem client onto another court appointed lawyer. The affiant also tolli Darryl Raynard Gordon he 

### had \\ 

### the right to represent himself. 5. The affiant filed a motion notifying the 

### trial court ofthe problems between the affiant and Darryl Raynard Gordon. The affiant specifically remembers the trial courtjudge on the record telling 

### Darryl Raynard Gordon 

### that he had been to the penitentiary twice with the assistance of counsel and**ask~** '"What n;takes you think you're**~o~g** to do any better without**~ne'r'** 

### Darryl Raynard Gordon insisted on representing 

### himselfand the trial courtjudge fonnally relieved the 

### affiant ofhis duties as court appointed lawyer. 

### 6. Darryl Raynard Gordon subsequently filed a grievance against the affiant claiming the affiant acted 

### in "an unprofessional manner''. The State Bar Grievance Committee chose not to pursue the claim. Darryl Raynard Gordon appealed the ruling 

### that the affiant did not violate the RuJes of Professional Conduct. The Board of Disciplinary Appeals affinned the committee ruling.

Texas State BarNo. 

### 24003768 6051 Clearwater Ranch Rd. Wtlls Point, Tx 

### 75169 Td: 972--563--3205 

### Fax:972-563-3208 info@michaelrayharris.com