CA USE NO. WR -82,437- 01

IN THE

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

____________________________________________________________

EX PARTE SHERRON DONDRIEL PHILLIPS,

APPLICANT

__________________________________________________________

ON APPLICATION FOR AN ARTICLE 11.07 WRIT OF HABEAS

CORPUS IN CAUSE NO. CR- 566

- 12 -D(1) IN THE 206 TH JUDICIAL

DISTRICT COURT, HIDALGO COUNTY, TEXAS

_____________________________________________________________



## APP LICANT’S BRIEF

_____________________________________________________________

ALFREDO MORALES, JR.

ATTORNEY AT LAW

P.O. BOX 52942

MCALLEN, TX 78505-2942

(956) 536-8800 BUS

(956) 381-4269 FAX

EMAIL: amjr700@gmail.com

ORAL ARGUMENT WAIVED WR-82,437-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/17/2015 4:02:58 PM

Accepted 3/17/2015 4:20:46 PM

ABEL ACOSTA

CLERKIDENTITIES OF PARTIES AND COUNSEL

In order to as sist the court in evaluating and determining whether there is

a ny reason which would require their disqualification or recusal from the

c ase at bar, the Applicant certifies that the following is a list of the parties

a nd counsel who have an interest in the outcome of this case:

PARTIES

Applicant: Sherron Dondriel Phillips

Inmate, Texas Dept of Criminal Justice

TRIAL COUNSEL

For Applican t: Toribio “Terry” Palacios

1805 E. Russell

Edinburg, TX 78539

Michael Tuttle

P.O. Box 4450

Edinburg, TX 78540

For State: Joaquin Zamora , ADA

Hidalgo County District Atty’s Office

Hidalgo County Courthouse

100 N. C losner

Edinburg, TX 78539

HABEAS COUNSEL

For Applicant: Alfredo Morales, Jr.

P. O. Box 52942

McAllen, TX 78505

iFor the State: Glenn Devino, ADA

Hidalgo County District Atty’s Office

Hidalgo County Courthouse

100 N. Closner

Edinburg, TX 78539

For Board of Pardons

and Parole: Joseph P. Corcoran, AAG

Texas Atty General’s Office

Appellate Division

P.O. Box 12548, Capitol Station

Austin, TX 78711

JUDGE

Tr ial judge: Rose Guerra Reyna

Presiding Judge

206 th Judicial District

Hidalgo County, TX

G. Jaime Garza

Auxiliary Criminal Court

Hidalgo County, TX

iiTABLE OF CONTENTS

IDENTITIES OF PATIES AND COUNSEL . . . . . . . . . . . . . . . . . . . i

- ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

- v

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ST ATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT AND AUTHORITIES UNDER ISSUE S ONE

AND TWO (CONSOLIDATED) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

- 5

ARGUMENT AND AUTHORITIES UNDER ISSUE THREE

. . . . 5

- 10

CONCLUSION AND PRAYER

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . .

. . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iiiINDEX OF AUTHORITIES

CONSTITUTION S

TEXAS CONSTITUTION

Article V, Section 5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATUTES

TEXAS GOVERNMENT CODE

Section 311.016(2)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Section 508.1411 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 6, 7, 9, 10

RULES

TEXA S RULES OF APPELLATE PROCEDURE

Rule 9.4(i)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . 11

Rule 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CASES

UNITED STATES SUPREME COURT

Olin v. Wakinekona,

103 S.Ct. 1741 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEXAS COURT OF CRIMINAL APPEALS

Armstro ng v. State

, 340 S.W. 3 d 7 59 (Tex. Crim. App. 2011 ) . . . . . . . . . . . . . . . . . . . 8, 9

Braxton v. Dunn,

803 S.W.2d 318 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . 8

i vCurry v. Wilson,

853 S.W.2d 40 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . 10

Dickens v. Second Court of Appeals

727 S.W.2d 542 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . 8

E x Parte Geiken,

28 S.W.3d 553 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . 5

Ex Parte Lockett,

956 S.W.2d 41 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . 5

Ex Parte Walton,

422 S.W.3d 72 0 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . 11

Healy v. McMeans,

884 S.W.2d 772 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . 9

In Re Daniel,

396 S.W.3d 545 (Tex. Crim. App. 2013) . . . . . . . .

. . . . . . . . . . 10

Lanford v. Fourteenth Court of Appeals,

847 S.W.2d 581 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . 9

Perkins v. Third Court of Appeals,

738 S.W.2d 276 (Tex. Crim. App. 1987) . . . . . . . .

. . . . . . . . . . . 8

State ex rel Hill v. Pirtle,

887 S.W.2d 921 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . 8

State ex rel Holmes v. Court of Appeals,

885 S.W.2d 389 (Tex. Crim. App. 1994) . . . . . . . . .

. . . . . . . . . . 5

vPRELIMINARY STATEMENT

In formulating a response to the questions posed by the court, the

Applicant made the following assumpt ions in conducting his legal research

and analysis, and in constructing his arguments for purposes of this

brief: 1) that the Applicant received advance notice of the Board’s intention

to consider him for parole; 2) that there is no presumption to par ole in this

case; and, 3) that the Applicant’s complaint does not challenge the Board’s

discretionary decision to not grant him parole; rather, Applicant challenges

the adequacy of the requisite statutory notice of the Board’s post

- hearing

decision.

STATEMENT OF THE CASE

Applicant was indicted by an Hidalgo County grand jury with possession

o f marijuana, a third degree felony. Applicant plead guilty and was placed

o n deferred adjudication and community superv ision. Neither a motion for

n ew trial nor an appeal of the deferred adjudication order was filed.

Subsequently, the State filed a motion to adjudicate and, as a result of a plea

b argain, Applicant plead true to the allegations in the State’s motion a nd

w as sentenced to 42 months in the Institutional Division of the Texas

Department of Criminal Justice. (Habeas Corpus Application and Trial

Court Findings.)

1STATEMENT REGARDIN G ORAL ARGUMENT

Because the issues in the case involve well

- settled principles of law,

oral argument will not aid in the court’s decisional process. Therefore,

Applicant waives oral argument.

ISSUES PRESENT ED

The court ordered that the parties brief the following questions for

review: 1) whether an applicant who contends that Sect. 508.1411 of

the Texas Government Code has an adequate remedy on habeas when there

is no presumption of release to pa role; 2) whether, assuming arguendo, that

an applicant has an adequate remedy on habeas, the written notice provision

of Sect. 508.1411 satisfies due process; and, 3) whether an application for

a writ of mandamus is the proper remedy for such claim.

STATEMENT OF FACTS

On August 1, 2014, the Board of Pardons and Parole (hereinafter the

“Board”) , pursuant to Section 50 8.1411 of the Texas Government Code,

n otified the Applicant that his p arole had been denied. Unsatis fied with the

adequacy of the statutory notice sent by the Board, the Applicant filed this

post

- conviction writ of habeas corpus in accordance with R ule 73 of the

Texas Rules of Appellate Procedure on this court’s prescribed form.

2SUMMARY OF THE ARGUMENT

Because Issues One and Two are interrelated, the Applicant consolidates

t he a rgument of these two issues under a single issue.

For purposes of this b rief, the undersigned court

- appointed counsel

c ontends that the Applicant does not have a remedy on habeas, because

t he Applicant has not demonstrated that he has a liberty interest in being

r eleased on parole; the Applicant’s challenge to the Board’s notice denying

him parole does not directly implicate the fact or duration of his

confinement; and, his complaint does not raise any jurisdictional defects or

denials of fundamental or constitutional rights.

While Applicant’s claim does not rai se a claim cognizable in a post

conviction writ of habeas corpus, he does state a claim that can be addressed

in an application for writ of mandamus.

ARGUMENT AND AUTHORITIES UNDER

ISSUE S NUMBER S ONE AND TWO

THE APPLICANT’S COMPLAINT THAT THE BOARD’S NOTICE

DENYING HIM PAROLE IS DEFFICIENT DOES NOT PROVIDE AN

ADEQUATE REMEDY ON HABEAS

The Applicant’s chief complaint in his habeas application is that the

3Board’s Section 508.1411 post

- hearing notice is inadequate and deficient,

b ecause it did not provide him with the information which formed the basis

f or its decision to deny him parole.

While the Applicant attempts to couch h is complaint as a constitutional

violation of his due process rights secured under the federal constitution,

it fails, given that the facts underlying his complaint do not rise to the level

of a constitutional violation. More speci fically, he does not argue (nor do

the facts support) that the statutory notice scheme fails to provide any type

of notice that comports with established guidelines and legislative mandates

ensuring an opportunity to be heard or considered. Rather, he argues that

the post

- hearing notice the Board sent him was deficient, since it did not

state with specificity what factor(s) it considered in denying him parole.

Such a complaint does not state a constitutional violation implicating due

p rocess. Add itionally, Applicant has not established that he has a liberty

i nterest in getting released on parole.

The Due Process Clause is invoked only where state procedures

i mperil a protected liberty or property interest. Olim v. Wakinekona,

103 S.Ct. 1741 (1983). Since the Applicant’s case does not involve a

mandatory release supervision situation, he does not enjoy a reasonable

4expectation of release on parole. See and compare with, Ex Par te Geiken,

28 S.W.3d 553 (Tex. Crim. App. 2000)(mandatory release statute creates

a liberty interest in parole).

Because the Applicant’s complaint and challenge to the Board’s parole

post

- hearing notice neither directly implicate the fact or dura tion of his

confinement, Ex Parte Lockett, 956 S.W.2d 41 (Tex. Crim. App. 1997),

nor raise any legitimate jurisdictional defects or allegations of violations

of constitutional rights, State Ex Rel. Holmes v. Court of Appeals, 885

S.W.2d 389 (Tex. Crim . App. 1994) , the current application for writ of

h abeas corpus under Article 11.07 of the Texas Code of Criminal Procedure

is not the proper procedural vehicle to address the relief Applicant seeks :

proper and sufficient statutory post

- hearing notice for denying him parole.

ARGUMENT AND AUTHORITIES UNDER

ISSUE NUMBER T HREE

THE WRIT OF MANDAMUS IS THE PROPER PROCEDURAL

MECHANISM TO ADDRESS THE APPLICANT’S COMPLAINT

OF DEFICIENT STATUTO RY POST

- HEARING NOTICE

The Applicant’s s o nly complaint is that the notice he received from the

Board denying him parole did not provide him with the requisite statutory

n otice detailing the factor(s) which formed the basis for its deci sion.

5The A pplicant ’s contention is correct.

Section 508.1411 of the Texas Government Code

, titled “Notification

o f Parole Panel Decision,” reads in pertinent part:

(a) For each decision of a parole panel . . . denying the release of

an inmate . . ., the parole panel shall :

(1) Produce a written statement, in clear and understandable

language , that explains :

(A) the decision; and

(B) the reasons for the decision only to the extent those

reasons r elate specifically to the inmate ;

(emphasis to original text added.)

The statute makes it clear that the parole panel denying the release of

a n inmate “shall” produce a written statement that is clear and easy to

u nders tand and that explains the reason(s) for the denial that relate only to

that particular inmate before it. See, Section 311.016(2), Texas

Government Code (“shall” when used in a statute imposes a duty). The

Board has no inherent powers or powers confe rred by statute or rule

p ermitting it to ignore express, mandatory statutory provisions.

Because the statue clearly prescribes the type and specificity of the

p ost

- hearing denial notice, an application for writ of mandamus can

6resolve the Applicant’s complaint and provide him with adequate relief.

In the particular case at bar, the Board’s denial notice sent to Applicant

d id not comport with the mandatory statutory requisites. Mo re specifically,

a s can be gleaned from examining the Board’s notice to Applicant, the

letter was nothing more than a hodgepodge of alternative reasons for

h is denial of parole, a far cry from the specificity required by Section

508.1411. Moreover, t h e Board’s notice was confusing, unclear, and

incomprehensible. More importantly , the notice was not tailored to address

the reasons that r elated “specifically to the inmate.” On the contrary, the

conjunction “or” was used throughout the denial notice, leaving the

Applicant guessing which of the several alternative reasons applied

specifically to him. Certainly it can be argued with relative ease that the

notice was not the “written statement, in clear and understandable

language ” explaining th e reasons of its decision to not grant parole as

contemplated by the statute.

Given that the Board did not comply with the statute’s mandate,

t hen, the Applicant can seek the appropriate relief through a writ of

m andamus.

The Texas Court of Criminal Appeals is empowered by, and has

7j urisdiction under, Article V, Section 5 of the Texas Constitution to issue

writs of mandamus “ in all criminal matters. ” State ex rel Hill v. Pirtle, 887

S.W.2d 921 (Tex. Crim. App. 1994). And while the court has never issued

a definite statement of what constitutes a “criminal law matter,” the court

h as held that the term “encompass[es], at a minimum, all legal issues

a rising directly out of a crimina l prosecution.” Armstrong v. State, 340

S.W.3d 759 (Tex. Crim. App. 2011). However, t he issuance of the writ is

never a matter of right, but rests within the sound discretion of the court.

Dickens v. Second Court of Appeals, 727 S.W.2d 542 (Tex. Crim. App.

1987). Additionally, mandamus is a drastic measure, to be invoked only in

e xtraordinary situations. Perkins v. Third Court of Appeals, 738 S.W.2d

276 (Tex. Crim. App. 1987). More importantly, mandamus is only available

t o c ompel a ministerial , not discretionary, act. Braxton v. Dunn, 803

S.W.2d 318 (Tex. Crim. App. 1991). “An act is said to be ministerial where

the law clearly spells out the duty to be performed . . . with such certainty

that nothing is left to the exercise of discretio n or judgment.” Texas Dept. of

Corrections v. Dalehite, 623 S.W.2d 420 (Tex. Crim. App. 1981).

Of course, before the court can entertain and grant a writ of mandamus,

t he applicant must fulfill two prerequisites: first, he must show that he

8h as no other adequate remedy at law; and, second, he must show that, under

t he relevant law and facts, he has a clear right to the relief he seeks. Healy

v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 19 94). The Applicant here

has met both prongs: first, he can neither appeal the board’s decision nor

challenge it through a post

- conviction writ of habeas corpus; and, second,

Section 508.1411 spells out, with specificity, what information must be

c on tained in the Board’s post

- hearing parole denial letter, leaving nothing

t o the exercise of its discretion or independent judgment in applying the

s tatute.

The Applicant reasonably anticipates that the State of Texas or the

Board of Pardons and Parole will argue that the statute he challenges is

a civil administrative statute and is, therefore, not a “criminal law matter”

over which this court has jurisdiction. However, the court has already put

that issue to rest. In both Lanford v. Fourt eenth Court of Appeals, 847

S.W.2d 581 (Tex. Crim. App. 1993) and Armstrong v. State, supra, this

court held that “(a)n issue d oes not cease to be a criminal law matter merely

because elements of civil l aw must be addressed to resolve the issue.” Id a t

p. 765. The statute in question here, while arguably civil in nature,

implements the Texas Code of Criminal Proced ure as it specifically relates

9to the trial court’s imposition of the Applican t’s sentence

. Therefore,

since the granting or denial of parole arises as a result of

, or incident to,

a criminal prosecution, the issue is one which necessarily involv es a

“criminal l aw matter,” subject to the court’s mandamus jurisdiction. Curry

v

. Wilson, 853 S.W.2d 40 (Tex. Crim. App. 1993).

Even though the Applicant has not specifically filed an application for

w rit of mandamus, this court has the legal authority to treat his current

application for habeas corpus as an application for w rit of mandamus under

current precedent. In Re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013).

CONCLUSION AND PRAYER

While the Applicant’s complaint that the Board’s post

- hearing notice

d enying him parole cannot be urged in a habeas corpus petition, such

c omplaint can be addressed in an application for writ of mandamus.

Accordingly, the Applicant respectfully requests that the court treat his

h abeas application as one for writ of mandamus

, and that it order t he

Board to re

- issue its notice

, with the specificity and particularity

mandated by Section 508.1411.

10R espectfully Submitted

,

A lfredo Morales, Jr.

A ttorney at Law

P. O. BOX 529 42

M cAllen , TX 78505

- 2942

(956) 536

- 8800 TEL

(956) 381

- 4269 FAX

Email: amjr700@gmail.com

/S/ Alfredo Morales, Jr.

__________________________ ALFREDO MORALES, JR.

STATE BAR NO. 14417290

CERTIFIC ATE OF COMPLIANCE

In accordance with Rule 9.4(i)(3) of the Texas Rules of Appellate

Procedure, and Ex Parte Walton, 422 S.W.3d 720 (Tex. Crim. App.

2014), I, Alfredo Morales, Jr., court

- appointed counsel of r ecord for

App licant , hereby certify t hat, relying on the word count of the c omputer

program used to prepare the App licant’s Brief herein, the brief contains

3,253 w ords.

/S/ Alfredo Morales, Jr.

__________________________ ALFREDO MORALES, JR.

11CERTIFICATE OF SERVICE

I, Alfredo Morales, Jr., hereby certify that a true and correct copy of the

App licant’s B rief was sent via regular mail to the following respective

counsel of record on this the 17 th day of March, 2015:

Glenn Devino, ADA

Hidalgo County District Attorney’s Office

Appellate Division

Hidalgo County Courthouse

100 N. Closner

Edinburg, TX 78539

Counsel for the State of Texas

Joseph P. Corcoran, AAG

Office of the Attorney General of Texas

Criminal Appeals Division

P.O. Box 12548

Capitol Station

Austin, TX 78711

Counsel for the Texas Board of Pardons and Paroles

/S/ Alfredo Morales, Jr.

__________________________ ALFREDO MORALES, JR.

12