April 24, 2015

Cathy 5. Lusk, Cleric 12th Court of Appeals Suite 354 1517 W. Front Street Tyler, Texas 75702 

# \a-V5-oo11&<£-

Re: Michael Lynn Eaton Criminal Application tor Writ of Mandamus 

### Frcau 115thJudicial Dist. Court, Upehur Count*, Tx. Cause nc. 15074

Dear Court Clerk; 

### FILEDINCOURTOFAPPEALS 12thCourt_o^ADpealsJpistrict

TYLER 1 fcXAb 

## CATHYS.LUSK,CLERK |

Enclosed with thie cover letter, please find Relators Abdication for Writ of Kandassua (4pe^ea) 

### Please consider this anoriginal application and open a file tor sax*. 

### Relator certifies that all parties subject tothis application for Writ of Mandamus have been served with a copy of this application byU.S. Mil.
If you have any questions or concerns please do not hesitate tocontact 

### we at the address or phcrie number Hatedbelow. I thankpm inadvance for j'our tins and considerations inprocessing ray application.

Sincerely,

Michael LynnBaton Relator, ^ro-se 1652213 Beto Unit 1391 FM 3328 Tennessee Colony, Tx. 75860 (903) 928-2217



### cci Carolyn Parrot, Upshur County District Clark 

### Deanna Drennan, Court Reporter for Upshur County Upshur County District Attorneys Office file

# cwB.ia-i.T-re/tfi-cgMICHAEL LY»i EATOW, IN THE 12TH COURT OF APPEALS Relator

v. 115TUDISTRICT COURT OF UPSHURCOUNTY, § 

### CAROLYNPARROTT, DISTRICT CLERK \ DhAtm DREMsAK, COURTREPORTER, f 

## Respondents I J jr; 

# ikq fi 

# APPUCA1IONFORWRITOFW^HLEATHYS^U^^

TO THE HONORABLE JUDGES OF THE TWELFTH COURT' OF APPEALS; COMES NOW, hichael Lynn Eaton, Relator ano files this Application for Writ of Mencamue directing the Respondent sitting Juc^e of the 115thJudicial District Court of Upshur County, Texas to instruct/order the Respondent District Clerk and Court Reporter to choose
one of teh three (3) methods offered to thee tcprovide Relator with the copies of relators Records relating to hisconviction inCause no. 15074 aIon* with a MM of the Transcript of the Plea Hearing in this cause of action, so that Relet** can prepare and perfect hifts Appeal of his conviction via an 11.07 Writ of habeaacorpus.

I JURISDICTION in* iithCcust ex Appeals has exclusive and original jurisdiction over this 

### Mandamus Petitionpursuant toArt. 5§8 of the Texas Constitution en©yajMMMt to the Texas government Code §24.007 and 24.309.

IX HISTORY OF PREVIOUS REQUESTS / EXHAUSTION OF REMEDIES 1. On August 31, 2012, the Upshur County Clerks office referred Relator to contact the CourtReporter to request a copy of his Court Transcripts. 

### 2. On February 19, 2013, Relator requested aptg* and cost summary from the Upshur CountyDistrict Clerk and Court Reporter. 

### 3. OnMarch 2o, 2C13, Relator submitted a follow-up letter to the Upshur County District Clerkafter receiving no response fromeither office. 4. OnApril 15, 2013, theDistrict Clerk cited a 1.00per pe*e cost tor copies and ayain referred Relator to contact theCourt Reporter. 5. On April 21, 2013, Relator submitted (a^ain) letters toboth the District 

### Clerk and the Court Reporter requesting apage ano cost summary (ie to provide the number of pages andcosts per document), 

### 6. OnMay 6, 2013, Respondent, District Clerk again quoted the l.oo per pays cost but again failed to provide the page count or summary requested by Relator. Again the Court Reporter failed torespond toRelators request. 

### 7. On May 22, 2013, Relator once again clearly pointed out to the District Clerk that he needed a page arid cost summary andneeded this "total* in order to affect a withdrawl from his Inmate Turst Fund Account.8. On July8, 2013, after further inquiry was not responded to, filed objection to the clerk and Reporter fees in motion form along with an attached affidavit 

### of inability to pay costs (In Forma Pauperis). Woresponse was made by either the District Clerk or the Court Reporter. The notionwas not heard. 

### 9. On December 23, 2013, after researching the options I had, prepared and submitted an application for Writ of Mandamus, including sixexhibits and •ailed sane to the 115th District Court arid sending copies to the Upshur County District Attorneys office and theDistrict Clerk. My Mandamus was refused by the District Clerk, and thus was n»vmt heard or considered. 10. On September 26, 2014, again afteradditional research and consultation, 

### andagain after' no responses by the District Clerk/Court Reporter orrulings by the Court, Relator again sent his "proposed* three options for the Clerk to choose free so as to previde delator with his requested copies of Records andTranscripts. The Options were 1: Apersonal copy (free), 2: a copy on loan, or 3: to pay .10 per page for copies. 11. On October 14, 2014, Relator received his FIRSTresponse from the court Reporter. The Court Reporter did not "choose" one of the three options, and provided Relator with an "estimated cost of $2,00u.00" for the Court Reporters record without a page or cost summary or anypage counts. TheClerk die not respond to Relators request nor choose any of the three options. It does not appear that Relators In Forma Pauperis was processed. 12. OnJanuary 8, 2015, Relator filed formal motions in the Trial Court one motion titled "Motion Requesting Preservation of Evidence" and the second titled "Motion Requesting Transcripts". Relator sent copies to the District Clerk, the Court Reporter, and to the District Attorneys Office. Relator formally requested that his motions be brought before the Court and that a HEARING be held to consider and rule upon hismotions. Relator did not 

### receive a reply from the Clerk orCourt lUfiiatai' Nohearing was ever scheduled or held on his motions. 

### 13. OnMarch 20, 2015, Relator prepared andsent a letter directly to the Judge 

### of the 115th Judicial District Court, the Honorable Lauren Parish, requesting that the Judge look into and inquire as towhy Relator was not getting the copies necessary for his Appeal and as towhat the problem was for the Clerk or Court Reporter in choosing one of the three options. Mo response 

### was received from the Judge by the Relator. The Relator has heard nothing further from theCourt Clerk or Court Reporter. No hearing has been held.

Ill ARGUMENT AND AUTHORITIES 

### Pursuant toTexas government Code $52,047, it states (a) "Aperson may apply for a transcript of tenevidence in a case reported by an official court reporter* The person must apply for the transcript to the official court reporter. The official court reporter SHALL furnish the transcript to the person 'nolater than 

### the 120th day after the date the; 1) application for the transcript isreceived bythe reporter; and 2} transcript fee ispaid 'or the person eetablishes indigency
as provided by rule 20 of theTexas Rules of Appellate Procedure.' Relator fully 

### complied with TRAP Rule 20 and has submitted hisapplication toproceed InForma Pauperis. Relators claim of indigence has not beencontested. The District Clerk appears not to have complied with TRAP Rule 20 and has not sent a copy of his

### In Forma Pauperis to the Court Reporter (based upon her response toquote Relator


### a cost of $2,000.00 for his Court Records)(Id. #11 herein). Since the Respondents have not timely filed a contest to Relators In Forma Pauperis Application , Relators allegations of indigence "will be deemed true" and Relator "will be allowed to proceed without advance payment of costs". TRAP Rule 20. See also TRAP Rules 

### 40(e)(3) and 53(j). Relator hasmade aprima facie showing of indigence. Horn&byv. State, 65 SW3d 801 (Tx. 2001) Seealso. Mcfatridye v. State, 309 SW3d 1 (TCA2010). 

### "An indigent criminal defendant has the constitutional ri*ht to a free appellate record in his first appeal of right" quoting Scottv. State, 80 SW3d 184 (2003). 

### (App. 10 2003), Seealso: Turner v. State, 71 SW3d 928 (App. 10 2001)(USCAamend, 14) "Trial court Judge had authority to hold hearing ondefendants motion for a free reporters record" TRAPRule 20.2. </*»«•ir^ fipy*M>r. g, .state. 55 SW3d 625. 

### According toSparkman Relator must request Record fromCourt Reporter and request
a hearing enhis application. Relator hascccrpiieo with both requirements. It is well settled and "there is noquestion that an indigent defendant isentitled to a free transcription of prior proceedings for an effective defense or appeal." quoting Lav-son v. State, 696 SW2d 828 (Tx.App. 13 1995)/ See also. Britt v. Worth Carolina, 92 Set. 431,433 (1971), Griffin v. Illinois, 76 Set 565, Biliie v. State, 605 MM 556,565 (TCA 1980), andAnaour v. State, 606 SW2d891,4*93 (TCAi960). 

### Inthe- case of White v. State, ftS SW2b 15 (App 8 1990) this Texas Appellate Court cited Britt where the U.S. Supreme Court identified twofactors in the establishing of a need for transcripts andrecords. They said that 1) the value of the transcript of the former trial to the defendant in connection with the 

### Appeal or trial for which it is sought, and 2) the availability ofalternative devices that would fulfill the same function as the transcript Britt @434. Britt made it clear that it will beassumed that the transcript is of value and the "State bears the burden of disproving either of the above mentioned factors." 

### Appellant states for the record that he has noother means ofobtaining the documents, records, and transcripts but through the Clerk and Court Reporter. Relator has provided three options tochooe from toprovide the documents he 

### requests, including a reduced fee which Relator , even though he is indigent, has agreed to pay. Relator , at the least believes he has met the burden to 

### be excused by statute from paying these fees by virtue of his affidavit of 

### indigency. See: In re Lee Children, 36 SW3d 702 (App. 10 2001) Relator believes that the denial of his requests represents an unreasonable interference with 

### his riflht to pursue hsi appeal and his access to the courts. (Tx.Const. Art 1$13), 

### (USCAAmend. 1). Seat Dallas County v. Sweitser, 881 SW2d 757 (App. 5 1994). 

### Relator will be filing his request for leave toAppeal with his Habeas Corpus.RELIEF REQUESTED / PRAYER
PREME81S CONSIDERED, Relator, Michael Lynn Eaten PRATS that this Honorable Court of Appeal OUKhsi application for Writ of Mandamus byvirtue of the facte andarguments contained herein, that they agree that Relator nee no other remedy at law to compel the Trial Court to perform a ministerial function toprovide himwith the papers toprosecute his appeal and that this Court ORDER theTrial Court, District Clerk, andCourt Reporter to choose one of three options offered byRelator and forthwith provide himwith the copies ne has requested. Respectfully submitted,
Michael KgM Eaton Relator, Pro-se 1652213 leto Unit 1391 FM 3328 Tennessee Colon*, Tx. 75880 (903) 92S-221?
UNSWORN DECLARATION 

### I, Michael Eaton, do hereby swear under the penalty of per^ur^ that the facts and statements mace herein are true and correct. 

# Swornandsignedonthisthe H. dayofgjftjs ,2015,

__ •^ M.

CERTIFICATE OF SERVICE 

### I, Michael Eaton, do hereby certify that I placed a copy cf this "Mandamus" into a proper wrapper with sufficient pre-paid U.S. first class postage aitaxed, and adressed same to the parties listed here below andplaced same into the 

# availablemailingsystemusedforsuchlegalmail. ffl/foLA_M/Z^LCertifiedonthisthe ^dayoffiffiu,2015. MichaelLyi

SENT TO:

CATHY S. LUSK, CLERK TWELFTH COURT OF APPEALS SUITE 354, 1517 W. FRONT STREET, TYLER, TEXAS 75702 CAROLYN PARRCTT, DISTRICT CLERK AND DEANNA DkENNAN, COURT REPORTS*. 115TH JUDICIAL DISTRICT COURT OF UPSHUR COUNTY 405 E. TITUS STREET, PC BOX 1052 CILMRE, TEXAS 75644-1052 UPSHUR COUNTY DISTRICT ATTORNEYS OFFICE, 115TB JUDICIAL DISTRICi COURT 405 E. TITUS STREET, GILMER, TEXAS 75644-1052

cc: file