Cause No. 15 305-C 

Gilbert S. Damian Th~ cJB,e District::'Court 

cument contains some 

TDCJ-ID 3382329, 

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pages ~hat are of poor quality at ~he time_ nf im.:anill::ili!:\1 

v. Walker LOUh~v0e~~· 

Walker County Distr~ct Clerk: 

In Her Official Capacity, 278Th Judicial District 

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RLAINTIFF"S ORIGINAL APR..ICATION FOR WRIT OF MANDAMUS 

RECEIVED IN 

COURT OF CRIMINAL APPEALS 

MAR 06 2015 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Gilbert Damian,Relator,pro se in the above-style and numbered cause Ab~1\cm>m,~~ 

this original Application For Writ Of Mandamus,pursaunt to Article 11 .07 Sectiopn 3(c) of the Texas 

Code of Criminal Procedure,and would show the Court the following: 

B. RELATOR I. 

1 .01 Gilbert Damian,TDCJ#382329 is an offender incarcerated in the Texas Department of Criminal Justice 

and is appearing pro se, who can be located~a:t Polunsky Unit, 3872 FM 350 South, Polk County, Texas 77351 

1 .02 Relator has exhausted his remedies and has no other adequate remedy at law. 

1 .03 The act sought to be comp-lelled is ministerial not discretionary in nature.TCCP Art. 11 .07 

Section 3(c) requires Respondent to immediately transmit to The Court Criminal Appeals a copy ~f 

the application for writ of habeas corpus,any answers filed,and a certificate reciting the date 

upon which that finding was made,if the convicting court decides that there are no issues to be 

resolved.No copy of the application for writ of habeas corpus,any answers filed,and a certificate 

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reciting the date upon which that finding was made have been transmitted to The Court Criminal 

Appeals. Had such documents been•-; transmitted to the Court Criminal Appeals by Respondent as required by statute,relator would have recieved notice from The Court Criminal Appeals. 

C RESPONDENT II. 

2.01 respondent,Gilbert Damian,in her/his capacity as District Clerk of Walker county,Texas has 

a ministerial duty to recieve and file all papers in a crinminal proceeding,and perform all other 

duties imposed on the clerk by law pursuant to TCCP Art. 2.21 ,and is responsible under TCCP 11.07 

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Sec. 3(c) to immedeiately transmit to The Court of Criminal Appeals a copy of the 

9Pplication for writ of habeas corpus,any answers filed,and a certificate reciting the date upon ' 

which that finding was made if the convicting court decided that there are no issues to be resolved. 

The District Clerk,Walker County may be be served at her/his ;~place of business at Walker County, 

Huntsville,Texas 77342. 

III. 

D. VIOLATION OF ARTICLE 11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE 

3.01 The Responde4nt violated Article 11 .07 section 3(c) of the Texas Code of Criminal Precedure 

by failing to provided a copy of the application for writ of habeas corpus,any answers filed and a 

certificate reciting the date upon which thattfinding was made to the Court of Criminal Appeals 

within the time presribed by law and with~n a reasonable time from the date on which the documents 

were requested to be transmitted. 

3.02 requests for the transmittal of the application for writ of habeas corpus,any answers filed, 

and a certificate reciting the date upon which that finding was made were made by Relator to District 

Clerk,Walker County, letters dated August 19,2009 State's Motion to Designate Issues and a Proposed 

Order Designating Issues purauant to Article 11 .07 Section 3(c) of the\! Code of Criminal Procedure 

True and accurate copies of the above Document s are attached hereto as Exhibits"A"i through 11 811 

and are incorporated by reference herein for all purposes. 

'B.03 To date Relator has recieved no response from Rependent regardingsRelator's request for 

transmittal of a copy of the application for writ of habeas corpus,any anwers filed and a certificate 

reciting the date upon which that finding was made to the Court of Criminal Appeals. 

3.04 As is clear from Relator's letters,Relator has repeatedly put Respondent on notice that Relator 

seeks the transmittal of a copy of the application for a writ of habeas corpus,any answers filed,and 

a certificate reciting the date upon which that finding was made to the Court of Criminal Appeals 

and that such records are required by The Court of Criminal Appeals to act on Relator's writ of habeas 

corpus.Relator has gone well beyond any requirement or obligationsim~ose8upon him by The Texas Code 

of Criminal Procedure.In contrast to Relator's effort'.'lRespondent has wholly failed to comply with 

the Texas Code of Criminal Procedure,Article 11.07 Section 3(c),is acting in bad faith,and has also 

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fai£: 7 aJifEJrd Relator the prfessional and cOTIIT[)n courtesy of any written responses to his correspondence 

and requests. 

3 • 05 Article 11 • 07 Section 3 (c) clearly states that " [9;;];f the convicting court decides that there: 

are no such issues,the clerk shall immediately transmit [emphasis added] to the Court of Crimininal 

Appeals a copy of the the application any answers filed and a certificate reciting the date upon~which 

that finding was made.Failure of the court to act within the allowed 20 days shall constitute such a 

finding."Texas Code of Criminal Procedure Article 11.07 Sec. 3(c). Respondent is in violation of this 

procedure,nministerial duties,and thus the laws of this state. 

IV. 

D. PRAYER FOR RELIEF 

WHEREFORE,PREMISES CONSIDERED Relator,Gilbert Damian,pro se,respectfully request a finding that the 

Respondent did not transmit documents to the Court od Criminal Appeals within a reasonable time after 

the date they were requested and that Relator brought this litigation in good faith and has substantially 

prevailed.Relator prays for an Order directing Respondent to trnasmit copy of the application for writ 

of habeas corpus,any answers filed and certificate reciting the date upon which that finding was made 

to the Court of Criminal Appeals as directed in Artic:!.e·;11 .07 Section 3(c) of the Texas Code of 

Relator's letters (Exhibits"A" th4gh11 811 ). 

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Res 'J~8tfuHy ;Swbmi tted, 

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Criminal Procedure ahd as requested in 

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THE STATE OF TEXAS ·; 

COUNTY OF POLI<ER 

E. AFFIDAVIT 

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~swe~rre~ oath the facts and allegations in the ab~~IT OF MANDAMUS are true 

~>£~-~ _) 'RELATOR 

F.CERTIFICATE OF SERVICE 

I hereby certify that a true copy of the above APPLICATION FOR WRIT OF MANDAMUS was served on February 

25,2rn5 by placing a copy in the U.S. Mail addressed To: 

on this the day of February 2rn 5. 

Court of Criminal Appeals 

P.O. Box 12308 

State Capital of Texas 

Austin,Texas 78711*2308*USA 

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CAUSE NO :11 5305C 

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Gilbert Damian 

TDCJ-ID #382329 

v. 

UNKNOWN COUNTY DISTRICT CLERK, 

IN HER OFFICIAL CAPACITY, 

RESPONDENT. 

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ORDER 

IN THE 27BTH JUDICIAL 

DISTRICT COURT OF 

WALKER COUNTV,TEXAS 

On this day,came to be heard the foregoing Relator's application for writ of Mandamus and it 

appears to the Court that the same should be: 

o~;~ GRANTED 

IT IS THEREFORE ORDERED THAT the District Clerk shall immediately transmit to the Court of 

Criminal Appeals a copy of the application for writ of habeas corpus,any answers filed and 

a certificate reciting the date upon which trnsmittal was made. 

SIGNED on this the __ day of ______ ,,_20 __ • 

PRESIDING JUDGE 

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"EXHIBIT A & 8" 
THIS TIME IS CONSECUTIVE 

On l:.lte l,__'f~/.day of x~~~)---• 19_3_~ Lll<:' above refer.8tiC'?r:l CclJ.I!=:"' ~·lilS 

called l:.o !:rial. The parl:.ies appeared .:I!> fr)llow?: !:.)1e Sl:.ai.,e arpear<:>d 

by i~_'s Speci<~l Prosecul:or, and U1'=' defenr:iant 1 ~_:_(_~-t'~f:. _ _@~.~_~-~-----' ,, r £' e.:tr ed in person w i I: h his a I:!: or 11 ey of r ,..<:or d IZ_./t·_;_e.t..l/._(_ ___ --~C-~.·.c_4.,..:Q _____ . 

1\olh parl:.ies announced ready for trial, at;rl !:.l1<? d<:-,fendan!:, ltaving 

-w.,ivl?d his right ~o a jury trial. entered IIi~ ple.;~_ of. gLTty to thcoffense of /J;-f.-L-~r::::.!!:..!.~__.dr___:!_~~_!{&7__a_~---__..:;-·-·- --~...!:"'~_c_(;__L:::.:::.~----·-·~g_~~c- .. _ , · r::•.)mmitted on :7_~_(_1,/ __ J___,l ___ , 19R. i\fl:l?r !:he reading of l-_he indicl:.rnt:?.llt 

~vrls waived and eV"idt:?.nce for !:he Slate and the Defendant was subrnill:.ed 

and concluded, and argu1nent of counsel for· l:he Stale and DefP.11da1d: was 

submitted and concluded, and argument of counsel for lhe St.are e1nd 

Uefendanl:. was heard and concluded, the Courl:. mad the following 

findings: 

TilE DEFENDANT IS GUILTY AS CHARGED IN Tl IE I NDI CT11ENT. 

Thereuron, the said Defendant having previously requested that. the 

C •.nt r t a s s e s s t h e p r o p e r pun i s h men t. , a n d u ron h e a r i n g a 11 1:. h e e v i den c e 

submitted by and on behalf of the Sl:.at.e and Defendant, the Court is of 

Ute opinion and so finds l:he proper punishment of the Defendant s.hould 

be/confinO?menl:. in the Te.xas Depar tmenl:. for a !:erm. of :.._ _ _J:_!.·.,k ________ _ 

(_G:,.._) years. 

T1: is l:.heref_9,re CONSIDERED, ADJUDGED At~D ORDERED by l:lte Court tlt<tt tlte 

l)efendant, f.c . .!..._!JJ..c_C _ _Q_c~ ,·.,:::---=:::::._ ___ , is gttilty of tl1'?. offense of 

/l;{-f.:t::Y-~..£_/_d----4.-~..>L~e!..._!~-~-~-.,;...--b_uL~-LLJ!.£!::.:::.::::- c omrni t 1:. t:?.d on 2~--/-~_/_J__ ___ , 19 Iff:, 

·and that he be punished by confinement in Ute Te>cas Depifrt.ment 0f 

r.>,rrer:-:tions for a term of _d_/_2_"'_ _____ -__ ____ (_~ years, and that sur.-h 

! " tt li s l1 me 11 t. be c a r r i e d i n I: o ex e c u t i on i 11 t· l1 e m a n n ""r p r e. s c r i bed by J. i1 w . 

Jt is further ORDERED by l:he Courl:. that lhe ,Judgrnent and Sen!:enr:-:e 111 

l:his cause shall began to run after l:he S0ntence of la\o.' in cause 

no. _j_~_/_/_L_:--- __ . received on I: he _j{/_(. __ day of .Q~_c;_f-:::.i~---. 191__2_, i 11 

!.II'.? .2...J.cd-D1 s t r 1 c t Court of g_l.__c_~..-LJ:_i&. _____ C oun t.y , 1 e>{a s I for t. he 

0 f fens e of /l~.c_t:3_~_f_~ __ !Z;,._,;~~_jf. __ ~_~_L __ c?__._ .. · for w I 1 .i. c h I: h '?. de f e nrl.:t 11 I: 

received t~~"-W~!:._<'!:D years, has ceased h) oper<~te. 

The Defendant is hereby remanded in jail until l:lte dir·ections of l:.ltis 

s etd: enc e can be obeyed. 

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'PF:SIIH 
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STATE OF TEXAS 

''~""' v~. 

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IN HIE D I STG I CT COUrn or 

w~ /;{c...- COUNTY~ IEXAS 

l_:l_f:._·TH ~IUDICIAL OI.STRICT 

J1JO(,?Et·1ENT_ f'NQ ~~NT~!J1;s Qbl. F·Lsfl QF 

GUILTY CJR bi_OLO ~ONT_EN].~Bs ~.sF DR~ COURT 

W~l VIER OF JURI TRIM .• 

,_ll.IDGE 

rRESIDING: .£.:::_"'::!.//'-"':._ _ _/? r-V.r..!_ _________ _ 

l\ TTORNEY FOR l\TTORt-JEY FOR 

STATE : .;:::_.-, ~.:::..lf __ Afi::::_.:!_q_~------- DE FE t~ DA IH : _.L-;_.f.L.z..~_f._d{ __ _a(:_~. e ~ L__ 

OfFENSE 

COt~V I CTED Of: ./1.~-JL-0'-"-'~cL_ _ __.d_-LL.EF..!.-:_(-:!__o~:_ ___ A __ 0.c_£_(_'3:._1:_!_::::_L_ __ {) ;;{'" ·-:::_ 

[JE(_:;REE Of OFFENSE: __ J.::::-L ___ Dl\TE OffENSE COf1t-1ITTED:_Z:_IT _ _Lj_ I 7:?/-__ 

<_:!11\RGIHG II~STRUt·1ENT: l£:!12l~It11tii 

f'L.El\ TO EN!ll\IKEt-lENT 

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f11Wlt~G ON USE OF DEADLY FORCE: 

l~l_!IH S! it·1EHT 1\1-llJ 

rLl\CE OF COt-IFINEJ·IENT: 1__,__!2~__,_ 

FLEl\: . g1!l1Ii 

fli-H>HlGS Ot·l 

F.t~rll\I.JCFJlEIH: 

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[)l\TE lU 

t:UI111 HIC F:: SEE DELO'ti / 

l!l\TE SEIHENCE . 

l i·IFOSED: __ :.)A_&'-_j._-y__!__J_z_Z}_________ COST: --0-

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T liiE 
SPECIAL PROSECUTION UNIT 

Kimberly Blackwill 

% Walker County District Clerk 

301 Courthouse 

1100 University Ave. 

Huntsville, Texas 77340 

340 Hwy. 75N .. Suite A 

Huntsville. Texas 77320 

(936) 291-2369 

Fax (936) 291-0845 

August 19, 2009 

Re: Cause No. 15305C(A-1), Ex Parte Gilbert Damian 

Dear Kimberly: 

Enclosed for filing please find the State's Motion to Designate Issues and c:· 

Proposed Order Designating Issues. Please present these to the judge for his 

consideratfion a tong witrt t.ile app~ication for habeas corpus. By copy of this ~etter. pre 

se applicant is being notified of this filing. 

Thank you for your assistance with this matter. If you need anything further, please 

caiL 

cc: Gilbert Damian 

Sincerely, 

.l. ; r·. ,-· - -)r I I l \ \. \.; \ 'l , . _A./ r .-L . ·''-- .. _,__..._._, ,_U-=-'--. ,......_l.l -v 

Melinda Fletcher, Appellate Attorney 

Special Prosecution Unit 

State Bar Card No 18403630 

P 0 Box 1744 

Amarillo, Texas 79105 

Phone 806 367 9407 

.Fax 806 · 367 9407 
CAUSE NO. 6430-A 

EXP.AR'fE IN THE 278 rn JliDhCIAL 

§ DISTRICT COURT OF 

GILBERT DAMIAN § WALKER COUNTY, TEXAS 

STATE'S REQUEST TO DESIGNATE ISSUES 

TO THE HONORABLE .. ruDGE OF SAID COURT: 

CO:M:ES NOW, the State of Texas, by and through Melinda Fletcher, postconviction attorney for the Special Prosecution Unit, and moves this Court to enter an 

order designating issues of controverted, previously unresolved fact to be resolved. On 

July 23, 2009, Gilbert Damian filed an application for writ of habeas corpus pursuant to 

TEX. CODE CPJM. PROC. art. 11.07, seeking to challenge his final felony conviction :tor 

aggravated assault 

_t>..n application filed under a..rt.icle 11.07 provides for a prompt review by the trial 

court to determine whether the application alleges any facts, which if true, couid entitle 

the applicant to relief. See art. 11.07, § 3 (c). lf the court deterrr.J.ines that controverted 

facts do exist, is shall enter an order designating the issues of fact to be resolved. A..rL 

11.07, § 3 (d); see lvlartin v. Hamlin, 25 S.W.3d 718, (Tex. Crim. App. 2000) (holding 

· the trial court has a duty to designate issues if it determines a habeas application contains 

controverted issues.). Upon entry of an order designating issues, the clerk does not have 

a duty to forward the application to the Court of Criminal Appeals, until the trial court 

has resolved those issues and entered its fmdings. See art. 11.07, § 3 (d). 
The State believes that the information from appellant's trial attorney will assist 

the Court in detennining whether facts exist material to the legality of ApplicCIJufs 

confinement before his application is forwarded to the Court of Criminal Appeals. 

Consequently, the State requests the Court enter an order designating 1ssues 

ordering applicants trial attorney, Elizabeth Derieux, to file an affidavit within thirty (30) 

days of the signing of this order, addressing applicant's claim of ineffective assistance of 

counsel. 

Further, the State requests both parties be allowed an additional thirty (30) days, 

after the receipt of the affidavit(s) to prepare their responses to applicant's claims. 

WHEREFORE, PREMISES CONSIDERED, the State prays that this Court 

enter the State's Proposed Order Designating issues. 

RespectfuHy submitted, 

Melinda Fletcher 

Post-Conviction Attorney 

Special Prosecution Unit 

P U Box 1744 

_A . .rnari..llo, Texas 791 OS 

Phone & Fax 806.367.9407 

Texas Bar Card No. 1 8403630 
CERTIFICATE OF SERVICE 

I hereby certify that on the 19m day of August, 2009, a true and correct copy of the 

State's Request to Designate Issues and Order were mailed postage prepaid to pro se 

applicant, Gilbert Damian, TDC # 382329, % TDCJ Wynne Unit, Huntsville, Texas 

77349. 

Melinda Fletcher 
CAUSE NO. 6430-A 

§ IN T.lti'!:E 278TH JUDICIAL 

§ DISTRICT CO-URT OF 

GILBERT DAMIAN § W ALI<ER COUNTY, TEXAS 

ORDER DESIGNATING ISSUES 

Tbe Court, having reviewed Applicant's application for writ of habeas corpus filed 

pursuant to TEx. CODE CRIM. PROC. art. 11.07, decides that there is a question of whdher 

there may be controverted, previously unresolved facts material to the legality of 

Applicant's confinement that require resolution. Accordingly, the. Court designates tht.:! 

fqllowing issues to be resolved: whether applicant's counsel" was ineffective. 

A hearing shall be conducted by affidavit. Applicant should not be returned to 

Walker County. Applicants trial attorney, Elizabeth Derieux, shall each prepare an 

affidavit, responding to the above-designated issues. The attorney is encouraged to obtain 

other affidavits as may be necessary to resolve these issues, 

The original affidavits shall be submitted to rhe Clerk of this Court with a cop:-' 

mailed to the applicant, Gilbert Damian, TDC # 382329, % TDCJ vVynne Unit, Huntsville, 

Texas 77349, and the State's post-conviction attorney, Melinda Fletcher, P 0 Box 174-4, 

/\marillo, Texas 791055 no later than September 30th5 2009. 

Upon receipt ofthe affid.avit(s), eacb pa..n:y is allowed to file a response and subm.it it 

to the Clerk of this Court with a copy mailed to the opposing parry, no iater October 30t\ 

2',009. 

The Clerk of this Court is directed to send a copy of the writ application along wrth 

attached exhibits, to applicant's trial attorney, Elizabeth Derieux, P 0 Box 2649. Lon~'ie\1\·. 

Texas 75606. - ~ -

The Clerk of this Court is also directed to send a copies of this Order to: 

(1) The State's post-conviction attorney, Melinda Fletcher, 

P 0 Box 1744, Amarillo, Texas 79105; 

(2) ProSe Applican~ Gilbert Damian~ TDC # 382329, 

% TDCJ Wynne Unit, Huntsville, Texas 77349; and 
(3) Applicant's attorney at trial, ElizabethDerieux, 

P 0 Box 2649, Longview, Texas 75606. 

SIGNED this, the __ day of August, 200Y. 

JUDGE PRESIDING