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 115th Judicial Dist. Court, Upehur Count*, Tx.

Cause nc. 15074

Dear Court Clerk;

FILED IN COURT OF APPEALS

12th Court_o^ADpealsJpistrict

TYLER 1 fcXAb

CATHY S. LUSK, CLERK |

Enclosed with thie cover letter, please find Relators Abdication for Writ

of Kandassua (4 pe^ea)

Please consider this an original application and open a file tor sax*.

Relator certifies that all parties subject to this application for Writ of

Mandamus have been served with a copy of this application by U.S. Mil.

If you have any questions or concerns please do not hesitate to contact

we at the address or phcrie number Hated below. I thank pm in advance for

j'our tins and considerations in processing ray application.

Sincerely,

Michael Lynn Baton

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.

115TU DISTRICT COURT OF UPSHUR COUNTY, §

CAROLYN PARROTT, DISTRICT CLERK \

DhAtm DREMsAK, COURT REPORTER, f

Respondents I J jr;

fiikq APPUCA1ION FOR WRIT OF W^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 115th Judicial 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 tc provide Relator with the copies

of relators Records relating to his conviction in Cause 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 habeaa corpus.

I

JURISDICTION

in* iith Ccust ex Appeals has exclusive and original jurisdiction over this

Mandamus Petition pursuant to Art. 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 Court Reporter to request a copy of his Court Transcripts.

2. On February 19, 2013, Relator requested a ptg* and cost summary from the

Upshur County District Clerk and Court Reporter.

3. On March 2o, 2C13, Relator submitted a follow-up letter to the Upshur County

District Clerk after receiving no response from either office.

4. On April 15, 2013, the District Clerk cited a 1.00 per pe*e cost tor copies

and ayain referred Relator to contact the Court Reporter.

5. On April 21, 2013, Relator submitted (a^ain) letters to both the District

Clerk and the Court Reporter requesting a page ano cost summary (ie to

provide the number of pages and costs per document),

6. On May 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 to respond to Relators request.

7. On May 22, 2013, Relator once again clearly pointed out to the District

Clerk that he needed a page arid cost summary and needed this "total* in

order to affect a withdrawl from his Inmate Turst Fund Account.
8. On July 8, 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). Wo response was made by

either the District Clerk or the Court Reporter. The notion was not heard.

9. On December 23, 2013, after researching the options I had, prepared and

submitted an application for Writ of Mandamus, including six exhibits and

•ailed sane to the 115th District Court arid sending copies to the Upshur

County District Attorneys office and the District Clerk. My Mandamus was

refused by the District Clerk, and thus was n»vmt heard or considered.

10. On September 26, 2014, again after additional research and consultation,

and again after' no responses by the District Clerk/Court Reporter or rulings

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

and Transcripts. The Options were 1: A personal copy (free), 2: a copy

on loan, or 3: to pay .10 per page for copies.

11. On October 14, 2014, Relator received his FIRST response 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 any page counts. The Clerk

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. On January 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 his motions. Relator did not

receive a reply from the Clerk or Court lUfiiatai' No hearing was ever

scheduled or held on his motions.

13. On March 20, 2015, Relator prepared and sent 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 to why Relator was not getting

the copies necessary for his Appeal and as to what 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 the Court Clerk or Court Reporter. No hearing has been held.

Ill

ARGUMENT AND AUTHORITIES

Pursuant to Texas government Code $52,047, it states (a) "A person may apply

for a transcript of ten evidence 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 'no later than

the 120th day after the date the; 1) application for the transcript is received

by the reporter; and 2} transcript fee is paid 'or the person eetablishes indigency

as provided by rule 20 of the Texas Rules of Appellate Procedure.' Relator fully

complied with TRAP Rule 20 and has submitted his application to proceed In Forma

Pauperis. Relators claim of indigence has not been contested. 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 to quote 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 has made a prima facie showing of indigence. Horn&by v.

State, 65 SW3d 801 (Tx. 2001) See also. Mcfatridye v. State, 309 SW3d 1 (TCA 2010).

"An indigent criminal defendant has the constitutional ri*ht to a free appellate

record in his first appeal of right" quoting Scott v. State, 80 SW3d 184 (2003).

(App. 10 2003), See also: Turner v. State, 71 SW3d 928 (App. 10 2001)(USCA amend, 14)

"Trial court Judge had authority to hold hearing on defendants motion for a

free reporters record" TRAP Rule 20.2. </*»«• ir^ fipy*M>r. g, .state. 55 SW3d 625.

According to Sparkman Relator must request Record from Court Reporter and request

a hearing en his application. Relator has cccrpiieo with both requirements. It is

well settled and "there is no question that an indigent defendant is entitled

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), and Anaour v. State, 606 SW2d 891,4*93 (TCA i960).

In the- case of White v. State, ftS SW2b 15 (App 8 1990) this Texas Appellate

Court cited Britt where the U.S. Supreme Court identified two factors in the

establishing of a need for transcripts and records. 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 of alternative

devices that would fulfill the same function as the transcript Britt @434. Britt

made it clear that it will be assumed 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 no other means of obtaining the

documents, records, and transcripts but through the Clerk and Court Reporter.

Relator has provided three options to chooe from to provide 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),

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

Relator will be filing his request for leave to Appeal with his Habeas Corpus.
RELIEF REQUESTED / PRAYER

PREME81S CONSIDERED, Relator, Michael Lynn Eaten PRATS that this

Honorable Court of Appeal OUK hsi application for Writ of Mandamus by virtue

of the facte and arguments contained herein, that they agree that Relator nee no

other remedy at law to compel the Trial Court to perform a ministerial function

to provide him with the papers to prosecute his appeal and that this Court ORDER

the Trial Court, District Clerk, and Court Reporter to choose one of three options

offered by Relator and forthwith provide him with 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.

Sworn and signed on this the H. day of gjftjs ,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 and placed same into the

available mailing system used for such legal mail. ffl/foLA_M/Z^LCertified on this the ^day of fiffiu , 2015. Michael Lyi

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