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RECEIVED IN COURT OF CRIMINAL APPEALS FEB 06 2015 ' AtoeS Acosfta, Cteirk •

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RE: QUESTION OF LAW/DISCRETIONAL AUTHORITY

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UNDER ART.11.05 T.C.C.P.,ANY JUDGE OF THE COURT OF CRIMINAL APPEALS HAS THE POWER TO ISSUE THE WRIT OF HABEAS CORPUS;AS UNDER ART.11.07 §5,THE COURT OF CRIMINAL APPEALS "MAY DIRECT THAT THE CAUSE BE CHECKED AND HEARD AS THOUGH CRIMINALLY PRESENTED TO SAID COURT OR AS AN APPEAL".

YOUR HONOR HOLDS EXCLUSIVE DISCRETIONARY AUTHORITY TO REVIEW MATTERS RELATIVE TO VIOLATIONS OF CONSTITUTIONAL DUE PROCESS. IN EFFECT,ART.11.04 STATES THAT "EVERY PROVISION RELATING TO THE WRIT .

OF HABEAS CORPUS SHALL BE MOST FAVORABLY CONSTRUED IN ORDER TO GIVE EFFECT TO THE REMEDY,AND PROTECT THE RIGHTS OF THE PERSON SEEKING RELIEF UNDER IT". WITH THIS SAID, I RESPECTFULLY IMPLORE YOUR DISERe ETIONAL AUTHORITY TO REVIEW,AND INTERVINE AS APPROPRIATE TO THE FOL LOWING: (QUOTING RULE 79.2(a) A MOTION FOR REHEARING AN ORDER THAT DEiSJIES HABEAS CORPUS RELIEF UNDER CODE OF CRIMINAL PROCEDURE ,ART, 11=07 OR 11.071,MAY NOT BE FILED. THE COURT ON ITS OWN INITIATIVE RECONSIDER THE CASE .-AMENDED JULY 12 ,2011 ,EFF. SEPT. 11 ,2011-T .<R. ft. P. ) A WRIT OF HABEAS CORPUS UNDER ART.11.07 WAS FILED ON SEPT.18, 2012(WRIT NO.WR-78,478-01). THE COURT OF CRIMINAL APPEALS DENIED WITHOUT WRITTEN ORDERPON OCT.24,2012,AND A PETITION FOR RESONSIDERA- KTOREWSBWSUBSEQUENTLY FILED''ON NOV.15,2012 BUT.WAS NOT ENTERTAINED 6y THIS COURT.

THE GROUNDS WITHIN SAID WRIT ENTAILED,ONE:INEFFECTIVE ASSISATAN- CE OF COUNSEL; AND TWO:A VIOLATION OF APPLICABLE RULE OF LAW-21.9 TEXHS RULES OF COURT/RULES OF APPELLATE PROCEDURE.

ALTHOUGH THE STATE EXCERCISED THEIR RIGHT TO DENY THE APPLICA TION UNDER THE AUTHORITY OF ART. 11.07 §3l(b), NO EXPLANATION OR REASON WAS G3JVEN TO REJECT EITHER GROUND AS MERITLESS. THE APPLICANT SOUGHT TO EXCERCISE RIGHT TO A REMEDY OF LAW. ENTITTLED BY THE CONSTITUTIO NAL E(DGHT:T0 DUE-RROCESS,BUT THE REMEDY SOUGHT WITHIN THE 11.07 APP LICATION WAS MISTAKENLY OVERLOOKED. NO EXPLANATION RELATIVE TO' THE RECOMENDATION OF THE STATE TO DENY EACH GROUND WAS GIVEN. ALTHOUGH APPLICANTS GROUND OF A VIOLATION TO RULE 21.9 HAD MERIT AS CONCURREB (1) BY THE UNITED STAES DISTRICT COURT FO THE WESTERN DISTRICT(SEE ATTACHMENT A.) THE COURT OF CRIMINAL APPEALS FURTHER DENIED THE WRIT AND BASICALLY AFFIRMED THE TRIAL COURTS NEGLECT TO ADDRESS A A VALID CLAIM.

IT IS WITH THIS SUSTENANCE THAT THE APPLICANT RESPECTFULLY .REQUESTS. .THA.T_YO.UR_ HONOR. TAKE APPRPRIATE- DISCRETIONARY AUTHORITY TO REVIEW WRIT. APPLICANT SEEKS TO EXHAUST.HIS RIGHTFUL REMEDY OF LAW AND SEEK RELIEF FOR A VIOLATION AGAINST HIS RIGHT OF DUE PROC ESS. ALL. IS WANTED IS THAT THE STATE ANSWER MY WRIT, AND GIVE SUPPO RTING REASONS TO THEIR DENIED OF MY GROUNDS SO THAT I MAY SEEK REL IEF IN A HIGHER COURT. IN A PROPER EXAMINATION OF MY GROUNDS THIS HONORABLE COURT SHALL DETERMINE THAT THE TRIAL COURT ABUSED ITS DIS CRETION IN DECLARING A MISTRIAL AS TO ITS ENTIRETY,WHEREAREAS,UNDER RULE 21.9 ADOPTED BY THIS HONORABLE COURT,RESENTENCING WAS THE APP ROPRIATE RECOURSE AT LAW. APPLICANT PRAYS THAT YOUR HONOR CONSIDER THIS REQUEST.

RESPECTFULLY SUBMITTED,

vN MUNOZ :J#14( DOLPH BRISCOE UNIT 1459 WEST HWY.85 DILLEY,TEXAS 78017

(2) Case 3:13-cv-00015 Document 4 ' Filed 01/29/2013DPage 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

JUAN MUNOZ, § TDCJ # 1467005, § Petitioner, § —-:— '• - — §: v. § EP-13-CV-15-PRM § BRAD LIVINGSTON, § Executive Director, Texas Department of § CriminalJustice, . § Respondent. § ORDER FOR RESPONDENT TO ANSWER In apro se petition for awrit of habeas corpus pursuant to 28 U.S.C. §2254, Petitioner Juan Munoz ("Petitioner") challenges his convictions for three counts of aggravated sexual assault by ajury in an El Paso County state court.1' Mindful of Petitioner'spro se status,2 the Court understands him to assert.that (1) the trial court erred when it declared amistrial during the punishment phase of the trial and ordered are-trial ofthe entire case, and (2) his appellate counsel provided constitutionally ineffective assistance when he failed to raise the trial court's error in declaring amistrial during the punishment phase and ordering are-trial ofthe entire case.

Upon review, the Court concludes that summary dismissal ofthe petition is not appropriate. Accordingly, the Court enters the following orders and advisories: 1. . Service on Respondent: The Court ORDERS the Clerk ofthis Court to serve a copy ofthe petition and this order upon counsel for Respondent, the Texas Attorney General. All documents shall be sent to the attention ofthe Chief, Postconviction Litigation Division.

1State v Munoz, Cause Number 20060D04737 (210th Dist. Ct., El Paso Cnty. Tex., Sept. 25, 2007), affd, No. 08-07-00304-CR, 2010 WL 546676 (Tex. App.—El Paso, Feb. 17, 2010, pet. dism'd).

2See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holdingprose pleadings to less stringent standards than formal pleadings drafted by lawyers); see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (explaining that liberal construction allows for active interpretation of&pro se pleading to encompass any allegation which may raise aclaim for federal relief).

ATTACHMENT (A)