No.

__________



IN THE
THIRTEENTH COURT OF APPEALS
FOR THE STATE OF TEXAS


In re Jerry Hartfield,

Relator-Petitioner,

vs.

The Honorable John Craig Estlinbaum,
Presiding Judge, 130th District Court
Matagorda County, Texas

Respondent.

_________________________________

PETITION FOR WRIT OF MANDAMUS
_________________________________



David R. Dow
Texas Bar No. 06064900
ddow@central.uh.edu
Jeffrey R. Newberry
Texas Bar No. 24060966
jrnewber@central.uh.edu
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
TEL: (713) 743-2171
FAX: (713) 743-2131
ACCEPTED
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/7/2014 3:33:58 PM
DORIAN RAMIREZ
CLERK
ii
IDENTITY OF PARTIES AND COUNSEL

So the members of this Honorable Court can determine disqualification and
recusal, Relator certifies the following is a complete list of the parties and their
attorneys in accordance with Texas Rule of Appellate Procedure 52.3(a).

1. RESPONDENT

The Honorable John Craig Estlinbaum
Presiding Judge, 130th District Court
1700 7th Street, Room 317
Bay City, Texas 77414-5094
Tel. (979) 244-7635

2. RELATOR

Jerry Hartfield
Matagorda County Jail
2323 Avenue E
Bay City, Texas 77414

Counsel for Relator
David R. Dow
Texas Bar No. 06064900
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131
iii
Counsel for Relator
Jeffrey R. Newberry
Texas Bar No. 24060966
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-6843
Fax (713) 743-2131

3. REAL PARTY IN INTEREST

The Honorable Steven Reis
Criminal District Attorney
1700 7th Street, Room 325
Bay City, Texas 77414-5094
Tel. (979) 244-7657
Fax (979) 245-9409

It is assumed that the Office of the Matagorda County District Attorney will
represent the Real Parties in Interest.

iv
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ........................................................................................ iv
INDEX OF AUTHORITIES .................................................................................... v
PETITION FOR WRIT OF MANDAMUS ............................................................. 1
STATEMENT OF THE CASE ................................................................................ 1
STATEMENT OF JURISDICTION ........................................................................ 3
ISSUE PRESENTED ............................................................................................... 4
STATEMENT OF FACTS ....................................................................................... 4
ARGUMENT AND AUTHORITY ........................................................................ 14
I. Mr. Hartfield is clearly entitled to the relief sought. .................................... 14
II. Mr. Hartfield has no adequate remedy at law. ............................................. 18
III. Pursuant to Rule 52.10, this Court should order Hartfield be released
pending the Courts action on this petition. ................................................. 18

PRAYER FOR RELIEF ......................................................................................... 20

CERTIFICATE OF SERVICE ............................................................................... 21

APPENDIX ............................................................................................................ 22

v
INDEX OF AUTHORITIES

Cases

Adams v. Texas,
448 U.S. 38 (1980) ......................................................................................... 5

Buntion v. Harmon,
827 S.W.2d 945 (Tex. Crim. App. 1992) ..................................................... 14

Curry v. Wilson,
853 S.W.2d 40 (Tex. Crim. App. 1993) ....................................................... 14

Dickens v. Court of Appeals for Second Supreme Judicial Dist.,
727 S.W.2d 542 (Tex. Crim. App. 1987) ....................................................... 3

Ex parte Doster,
303 S.W.3d 720 (Tex. Crim. App. 2010) ................................................ 15-16

Ex parte Weise,
55 S.W.3d 617 (Tex. Crim. App. 2001) ....................................................... 15

Hartfield v. State,
645 S.W.2d 436 (Tex. Crim. App. 1980) ................................................... 4, 5

Hartfield v. Thaler,
403 S.W.3d 234 (Tex. Crim. App. 2013) ............................................. 6, 7, 10

Hartfield v. Thaler,
498 F. Appx 440 (5th Cir. 2012) .............................................................. 9-10

Hartfield v. Thaler,
No. AP-76,926 (Tex. Crim. App. Dec. 19, 2012) ........................................ 10

In re Kenneth Fox Supply Co., No. 13-12-00678-CV, 2012 WL 5944961
(Tex. App.Corpus Christi Nov. 20, 2012, orig. proceeding)
(mem. op., not designated for publication) .................................................. 15


vi
In re Mission Consol. Indep. School Dist.,
990 S.W.2d 459 (Tex. App.Corpus Christi, orig. proceeding) ............ 14-15

In re Nitla S.A. de C.V.,
92 S.W.3d 419 (Tex. 2002) .......................................................................... 14

In re Perritt,
992 S.W.2d 444 (Tex. 1999) ........................................................................ 14

OPry v. State,
642 S.W.2d 748 (Tex. Crim. App. 1981) ....................................................... 5

Padilla v. McDaniel,
122 S.W.3d 805 (Tex. Crim. App. 2003) ....................................................... 4

Smith v. Gohmert,
962 S.W.2d 590 (Tex. Crim. App. 1998) ..................................................... 18

State ex rel. Rodriguez v. Marquez,
4 S.W.3d 227 (Tex. Crim. App. 1999) ......................................................... 14

State ex rel. Wade v. Mays,
689 S.W.2d 893 (tex. Crim. App. 1985) ...................................................... 14

Strunk v. United States,
412 U.S. 434 (1973) ..................................................................................... 16

Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) .................................................................. 14, 18

Witherspoon v. Illinois,
391 U.S. 510 (1968) ....................................................................................... 5

Statutes

Tex. Code Crim. Proc. art. 28.061 .......................................................................... 16

Tex. Cr. App. R. 309(f) ............................................................................................ 6

Tex. Govt Code 22.201(n) .................................................................................... 4
vii
Tex. R. App. P. 52.10 ............................................................................................. 18

Tex. R. App. P. 74.9 ............................................................................................... 11

Other authorities

Memorandum Adopting Report and Recommendation of the United States
Magistrate Judge and Entering Final Judgment, Hartfield v. Director,
No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............................................... 9

Memorandum and Recommendation, Hartfield v. Quarterman,
No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............................................ 8-9

Order, Hartfield v. Quarterman,
No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............................................... 8

Order Denying States Motion to Dismiss Article 11.08 Habeas Application
and Order Setting Hearing on the Application, State v. Hartfield,
No. 13-334 (130th Dist. Ct., Matagorda County, Nov. 27, 2013) .......... 12, 15

Order for Additional Briefing, State v. Hartfield, No. 13-334
(130th Dist. Ct., Matagorda County, Jan. 24, 2014) .................................... 13

Order of Adoption, Hartfield v. Quarterman,
No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............................................... 9

Order on Application for Writ of Habeas Corpus, Ex parte Hartfield,
No. 13-E-0325-C (130th Dist. Ct., Matagorda County, Aug. 14, 2013) ...... 11

Order Setting Briefing Deadlines, State v. Hartfield, No. 13-334
(130th Dist. Ct., Matagorda county, Dec. 27, 2013) .................................... 13

Order Setting Hearing on States Motion to Dismiss, Ex parte Hartfield,
No. 13-334 (130th Dist. Ct., Matagorda County, Nov. 18, 2013) ................ 12

Petition for a Writ of Mandamus, Hartfield v. Quarterman,
No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............................................... 8

Report and Recommendation of the United States Magistrate Judge,
Hartfield v. Director, No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............ 9
viii
Transfer Order, Hartfield v. Quarterman,
No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011) ............................................... 9
No. __________

IN THE
THIRTEENTH COURT OF APPEALS
FOR THE STATE OF TEXAS


In re Jerry Hartfield

Relator-Petitioner,

vs.

The Honorable John Craig Estlinbaum,
Presiding Judge 130th District Court
Matagorda County, Texas

Respondent.

_________________________________

PETITION FOR WRIT OF MANDAMUS
_________________________________

TO THE HONORABLE JUDGES OF THE THIRTEENTH COURT OF
APPEALS:

STATEMENT OF THE CASE
Jerry Hartfield has been unlawfully held and confined in custody by the
State of Texas for thirty-four years. Nearly one year ago, the Texas Court of
Criminal Appeals suggested that Mr. Hartfield seek release from his unlawful
custody by filing, in the trial court, a pre-trial petition for writ of habeas corpus.
Immediately on the heels of the CCAs ruling, Mr. Hartfields counsel heeded the



2
suggestion of the Court and filed such a petition. Yet the trial court has refused to
rule on that petition, and Mr. Hartfield thus remains in custody.
In 1977, Jerry Hartfield was convicted of capital murder and sentenced to
death. In 1980, the Court of Criminal Appeals overturned his conviction and
sentence and ordered that Hartfield receive a new trial. In 1983, that order became
final.
Over 12,000 days have passed since the Texas Court of Criminal Appeals
overturned Mr. Hartfields sentence and ordered he receive an entirely new trial.
Over 11,000 days have passed since the order became final and the court issued its
mandate. Over 2,500 days have passed since Mr. Hartfield, an illiterate man with
an IQ reported to be in the fifties, with the assistance of a fellow prisoner, first
attempted to raise a speedy trial claim. Almost 300 days have passed since the
Court of Criminal Appeals issued its order that stated Hartfield is under no
conviction or sentence and that his speedy trial claim could be raised in an
application for a writ of habeas corpus filed pursuant to Article 11.08.
Though the Court of Criminal Appeals resoundingly declared Hartfield to be
a man under no conviction or sentence almost ten months ago and Hartfield filed
his application pursuant to Article 11.08 a mere eight days following the issuance
of the CCAs opinion, the Honorable John Craig Estlinbaum of the 130th District
Court of Matagorda County has yet to issue a ruling. The State therefore continues



3
to hold Hartfield in custody at the Matagorda County Jail while engaging in
dilatory tactics designed to obfuscate the issue that must be decided: whether Mr.
Hartfields constitutional right to a speedy trial has been violated. By finding
Hartfields claim is cognizable through a pretrial habeas application, the Court of
Criminal Appeals recognized that Hartfields substantive rights and the
conservations of judicial resources would be better served by interlocutory review.
In failing to issue a ruling on Hartfields application in a timely fashion, Judge
Estlinbaum is subverting the will of the Court of Criminal Appeals, compounding
the egregious violation of Hartfields rights under the Sixth Amendment of the
Constitution, and squandering judicial resources.
STATEMENT OF JURISDICTION
This Court has the authority to grant an application for writ of mandamus
under Article 5, section 6 of the Texas Constitution and Section 22.221(b) of the
Texas Code of Government. See Dickens v. Court of Appeals for Second Supreme
Judicial Dist., 727 S.W.2d 542, 546 (Tex. Crim. App. 1987) (courts of appeals
have original jurisdiction to issue writs of mandamus against any judge of a district
or county court, without any restriction upon the subject matter of the writ.).
[W]hen a court of appeals and [the Court of Criminal Appeals] have concurrent,
original jurisdiction of a petition for a writ of mandamus against the judge of a
district or county court, the petition should be presented first to the court of appeals



4
unless there is a compelling reason not to do so. Padilla v. McDaniel, 122
S.W.3d 805, 807 (Tex. Crim. App. 2003). Because the 130th Judicial District is
located in Matagorda County, this is the proper court of appeal in which to raise a
petition for a writ of mandamus seeking to compel Judge Estlinbaum to issue a
ruling. Tex. Govt Code 22.201(n).
ISSUE PRESENTED
The specific issue presented in this petition for a writ of mandamus is
whether a trial court may refuse to rule on a pretrial habeas application and thereby
prolong the illegal confinement of a man imprisoned under no sentence or
conviction for over thirty years while proceeding to move forward with a costly
capital murder trial which likely will prove to be in violation of the defendants
Sixth Amendment right to a speedy trial.
STATEMENT OF FACTS
Jerry Hartfield was convicted of the capital murder of Eunice Lowe and
sentenced to death in June 1977. Mr. Hartfield appealed his conviction and
sentence to the Court of Criminal Appeals (CCA) on numerous grounds. On
September 17, 1980, the court unanimously reversed his conviction and ordered a
new trial. Hartfield v. State, 645 S.W.2d 436, 441 (Tex. Crim. App. 1980). The
court held that the State had violated Mr. Hartfields rights under the Sixth and
Fourteenth Amendments by striking a juror for cause because of her reservations



5
about the death penalty. See Witherspoon v. Illinois, 391 U.S. 510, 520-23 (1968);
see also Adams v. Texas, 448 U.S. 38, 43-45 (1980) (applying Witherspoon to the
specific procedure Texas employs in capital cases).
On October 2, 1980, the State sought leave to file a motion for rehearing,
urging the court to reform the sentence to life imprisonment instead of remanding
for a new trial. See Exhibit A (first motion for leave to file motion for rehearing);
see Hartfield, 645 S.W.2d at 442. Alternatively, the State asked for a reasonable
period of time to seek a commutation of Hartfields sentence from the governor.
Hartfield, 645 S.W.2d at 442. On November 26, 1980, the court granted the
motion for leave to file the motion for rehearing. See Exhibit B (rulings on
motions for leave to file). The State could have sought to have Mr. Hartfields
sentence commuted at this time. It did not. Had the State done so, had the
governor commuted Mr. Hartfields sentence, and had the CCA subsequently
denied Mr. Hartfield relief on the remaining claims raised in his brief, the
commutation would have been effective. See OPry v. State, 642 S.W.2d 748, 751
(Tex. Crim. App. 1981) (June 1 commutation effective after CCA remanded on
Witherspoon error on May 20). But that is not what happened. Instead, not until
January 31, 1983, did District Attorney Jack Salyer, 130th District Court Judge
G.P. Hardy, and Matagorda County Sheriff Sammy Hurta write the Board of
Pardons and Paroles (BPP) and request Hartfields sentence be commuted. In their



6
letter to the BPP, these state officials conceded it would be extremely difficult for
the State to re-try him after over 6 years has passed. See Exhibit C (letter from
Salyer, Hardy, and Hurta to BPP). On February 10, the BPP had not acted and the
State filed a motion for leave to file a second motion for rehearing. See Exhibit D
(motion for leave to file second motion for rehearing). However, because the
ruling on the first motion for rehearing did not change the disposition of the case, a
second motion for rehearing was not permissible. Tex. Cr. App. R. 309(f);
Hartfield v. Thaler, 403 S.W.3d 234, 236 n.1 (Tex. Crim. App. 2013).
Consequently, the motion for leave to file was denied on March 1, 1983. See
Exhibit B. The CCA issued its mandate on March 4, 1983. See Exhibit E
(mandate). As soon as mandate issued, [Mr. Hartfields] conviction and sentence
were vacated, [the CCAs] order for a new trial became final, and the case was
returned to the point it would have been had there never been a trial. Hartfield,
403 S.W.3d at 239.
The Wharton County District Clerk received the mandate on March 9. See
Exhibit E. Neither District Attorney Salyer nor Judge Hardy made an attempt to
inform either the governor or the BPP that the CCA had issued its mandate; no
State official made any attempt. The State took no steps toward carrying out the
mandate. On March 15, 1983, the governor signed a document purporting to
commute Mr. Hartfields sentence to life in prison. See Exhibit F. The Wharton



7
County clerk returned a postcard to the clerk of the CCA saying the mandate had
been carried out. See Exhibit G. However, [b]ecause there was no longer a death
sentence to commute, the governors order had no effect. Hartfield, 403 S.W.3d
at 239. The State made no attempt to correct the clerks mistake.
Mr. Hartfield, a illiterate man whose IQ prior to trial had been determined to
be fifty-eight remained incarcerated. See Exhibit H (report of Dr. Kenneth
Owens). The State took no action to carry out the CCAs mandate.
In 2006, with the assistance of another incarcerated person, Mr. Hartfield
began to pursue the new trial that the CCA had ordered decades earlier. Mr.
Hartfield filed an application for a writ of habeas corpus pursuant to article 11.07
on November 14, 2006. He supplemented the application with a pleading filed on
November 27, 2006. In the supplemental pleading, he raised a speedy trial claim.
The trial court did not act upon the application within thirty-five days of it being
filed, and that failure to act was found by the Wharton County clerk to constitute a
finding that there were no previously unresolved facts. The application was then
forwarded to the Court of Criminal Appeals. On January 31, 2007, the court
denied the application without a written order. See Exhibit I (postcards from
CCA). Mr. Hartfield also attempted to ask the CCA to compel a new trial through
a petition for a writ of mandamus. The CCA, however, denied his motion for leave
to file the petition and did not consider the petition. See Exhibit I. Mr. Hartfield



8
attempted again to raise his claim in an application pursuant to 11.07, but that
application was dismissed as successive on May 30, 2007. See Exhibit I.
On October 22, 2007, Mr. Hartfield filed a petition for a writ of habeas
corpus in the U.S. District Court for the Southern District of Texas raising two
claims: that his right to due process had been denied by the trial courts failure to
retry him and that he was being detained by an illegal sentence. Petition for a Writ
of Habeas Corpus by a Person in State Custody, Hartfield v. Quarterman, No.
6:09-cv-00098 (E.D. Tex. Apr. 29, 2011). That same day he also filed a petition
for a writ of mandamus asking the federal district court to order the State to either
retry him or release him. Petition for a Writ of Mandamus, Hartfield v.
Quarterman, No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011). On October 3, 2008,
Magistrate Judge Stephen Smith appointed the federal public defenders office to
represent Mr. Hartfield. Order, Hartfield v. Quarterman, No. 6:09-cv-0098 (E.D.
Tex. Apr. 29, 2011). Judge Smith concluded that Hartfield [was] not in custody
pursuant to the judgment of a state court because the trial courts judgment of
conviction and sentence ceased to exist once the CCA issued its mandate and no
subsequent event has changed [that] simple fact. Memorandum and
Recommendation at 21, Hartfield v. Quarterman, No. 6:09-cv-00098 (E.D. Tex.
Apr. 29, 2011). Because the court found that Hartfield was not in custody pursuant
to a state court judgment, it construed Hartfields application as being one filed



9
under 28 U.S.C. 2241. Id. at 22. As such, venue was not proper in the southern
district because Mr. Hartfield, at that time, was in custody in the area served by the
District Court for the Eastern District of Texas. Id. at 24.
On February 25, 2009, District Judge Lynn Hughes adopted Judge Smiths
recommendation as his order, Order of Adoption, Hartfield v. Quarterman, No.
6:09-cv-00098 (E.D. Tex. Apr. 29, 2011), and transferred the case to the Eastern
District of Texas, Transfer Order, Hartfield v. Quarterman, No. 6:09-cv-00098
(E.D. Tex. Apr. 29, 2011).
Magistrate Judge John Love of the eastern district recommended that Mr.
Hartfields petition should be dismissed without prejudice because the court
believed he had failed to exhaust state court remedies. Report and
Recommendation of the United States Magistrate Judge at 10, Hartfield v.
Director, No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011). District Judge Michael
Schneider adopted the recommendations and dismissed Hartfields petition without
prejudice on April 29, 2011. Memorandum Adopting Report and
Recommendation of the United States Magistrate Judge and Entering Final
Judgment at 8, Hartfield v. Director, No. 6:09-cv-00098 (E.D. Tex. Apr. 29, 2011).
Both sides appealed to the Fifth Circuit. Finding no controlling state
precedent regarding what the status of Mr. Hartfields conviction and sentence
was, the court certified the question to the CCA on November 28, 2012. Hartfield



10
v. Thaler, 498 F. Appx 440, 445 (5th Cir. 2012). The CCA agreed to answer the
question December 19, 2012 and ordered the parties to file briefs by January 7,
2013. Hartfield v. Thaler, No. AP-76,926 (Tex. Crim. App. Dec. 19, 2012).
The court heard argument on January 16, 2013. The CCA answered the
question on June 12, 2013. According to the court, [t]he status of the judgment of
conviction is that [Mr. Hartfield] is under no conviction or sentence. Hartfield v.
Thaler, 403 S.W.3d 234, 240 (Tex. Crim. App. 2013). Regarding whether Mr.
Hartfield had properly exhausted his speedy trial claim, the court wrote:
When [Hartfield] filed a state application for writ of habeas corpus, he
filed it under Code of Criminal Procedure Article 11.07. Because
Article 11.07 relates only to post-conviction applications for writ of
habeas corpus and there was no judgment of conviction against
[Hartfield], this was not the proper procedure, and we denied his
application. He also filed an application for leave to file a petition for
mandamus asking us to compel a new trial. This too was the improper
procedure because our reversal of his conviction left him in the same
position as if he had never had a trial. If his motion to set aside the
indictment for failure to provide a speedy trial was sustained, then
[Hartfield] would be discharged under Article 28.061 of the Texas
Code of Criminal Procedure. Alternatively, [Hartfield] could have
filed an application under Article 11.08. Therefore, the United States
District Court for the Eastern District is correct that [Hartfield] has not
exhausted state remedies. Because our denial of [Hartfields]
applications for writs of habeas corpus and mandamus were based on
his failure to follow the proper procedure, it is not a forgone
conclusion that [Hartfields] state claims will be denied and
exhaustion of state remedies is not futile.

Id. at 239-40. If the State believed that the CCA had erred either in addressing the
exhaustion issue or in any other manner, a mechanism existed by which the State



11
could have raised that concern. Within fifteen days of the courts issuing its
opinion, the State could have filed a motion for rehearing. Tex. R. App. P. 74.9.
The State filed no such motion.
Eight days after the CCA answered the certified question, on June 20, 2013
(nearly ten months ago), Mr. Hartfield utilizing one of the procedural vehicles
identified in the opinion filed his application for a writ of habeas corpus pursuant
to article 11.08 in 130th District Court.
On August 14, the court convened a scheduling conference and set a hearing
on Mr. Hartfields speedy trial claim for November 7, 2013. Order on Application
for Writ of Habeas Corpus, Ex parte Hartfield, No. 13-E-0325-C (130th Dist. Ct.,
Matagorda County, Aug. 14, 2013).
(Prior to the commencement of the November hearing, on September 4,
2013, the State filed a motion to dismiss Mr. Hartfields application, arguing that
his speedy trial claim was not cognizable in an application filed pursuant to article
11.08 even though the CCA had clearly identified such as an available vehicle in
its June 12 opinion and even though the State had filed no motion for rehearing or
made any other objection following the issuance of the opinion.)
On November 7, counsel having prepared for the speedy trial hearing that
was to have occurred that day travelled to the 130th only to learn that Judge
Estlinbaum had no intention of convening Mr. Hartfields speedy trial hearing that



12
day. Judge Estlinbaum explained that it was his belief that the parties had agreed
he could decide both the States motion to dismiss and Mr. Hartfields speedy trial
claim raised in his application filed pursuant to Article 11.08 on submission.
Undersigned counsel and the District Attorney explained that they had only
intended the court to decide the States motion on submission, but the parties and
judge agreed on that day that Judge Estlinbaum could decide both issues on
submission. On that same day November 7, 2013 Judge Estlinbaum indicated
that he would do so.
Of course, as the need for filing this Petition makes clear, Judge Estlinbaum
has not done so. Instead, on November 18, Judge Estlinbaum informed that parties
that he would hold a hearing to reach a decision on the States motion to dismiss.
That hearing took place on November 26, and the following day, the Court issued
an order denying the States motion. See Order Setting Hearing on States Motion
to Dismiss, Ex parte Hartfield, No. 13-334 (130th Dist. Ct., Matagorda County,
Nov. 18, 2013); Order Denying States Motion to Dismiss Article 11.08 Habeas
Application and Order Setting Hearing on the Application, State v. Hartfield, No.
13-334 (130th Dist. Ct., Matagorda County, Nov. 27, 2013). In addition, and at
long last, the trial court set a hearing on Mr. Hartfields habeas application for
December 19.



13
A hearing on the habeas application occurred as scheduled on December 19,
and on December 27, 2013, the Court ordered additional briefing. Order Setting
Briefing Deadlines, State v. Hartfield, No. 13-334 (130th Dist. Ct., Matagorda
County, Dec. 27, 2013). The court ordered the parties file briefing by January 10,
reply to the other side by January 15, and file proposed findings of fact and
conclusions of law by January 15. Id. Both sides acted in accordance with the
courts order. On January 24, the court ordered the parties file additional briefing
by January 31. Order for Additional Briefing, State v. Hartfield, No. 13-334
(130th Dist. Ct., Matagorda County, Jan. 24, 2014). Both sides filed the additional
briefing in accordance with the courts order.
In sum: Ten months have passed since the Court of Criminal Appeals ruled
that Mr. Hartfields confinement is illegal and that he could employ article 11.08 to
obtain release from his unlawful confinement. Ten months have passed since Mr.
Hartfield filed such a pre-trial application for habeas corpus. Five months have
passed since Judge Estlinbaum stated he would decide the issue. Nearly four
months have passed since a hearing was held, and two months have passed since
yet another round of briefing was filed in the trial court. Nothing has happened,
except that Mr. Hartfield remains in custody.
Meanwhile, the District Attorneys Office still postures as if it intends to
proceed with a trial, despite the uncontested fact that crucial evidence has been



14
lost, and despite the fact that another proceeding would be a gross violation of Mr.
Hartfields Sixth Amendment right to a speedy trial. At this point, Mr. Hartfield
has spent three-fourths of his adult life in illegal custody because of the State of
Texas unlawful actions. It is long since past due for this gross miscarriage of
justice to be corrected.
ARGUMENT AND AUTHORITY
I. Mr. Hartfield is clearly entitled to the relief sought.
Mandamus relief is available to correct clear abuses of discretion where the
trial court has refused to act, where the Relator is clearly entitled to relief, and
where there is no other adequate remedy to protect Relators rights or interests.
See generally In re Perritt, 992 S.W.2d 444 (Tex. 1999); In re Nitla S.A. de C.V.,
92 S.W.3d 419 (Tex. 2002). The Court of Criminal Appeals has observed that a
writ of mandamus should issue when the relator can demonstrate a clear
entitlement to relief and that there is no other adequate remedy at law. See State ex
rel. Rodriguez v. Marquez, 4 S.W.3d 227, 228 (Tex. Crim. App. 1999); Curry v.
Wilson, 853 S.W.2d 40 (Tex. Crim. App. 1993); Buntion v. Harmon, 827 S.W.2d
945, 947 & n.2 (Tex. Crim. App. 1992); State ex rel. Wade v. Mays, 689 S.W.2d
893, 899 (Tex. Crim. App. 1985); see also Walker v. Packer, 827 S.W.2d 833,
839-40 (Tex. 1992). Mandamus relief is appropriate in cases in which a court does
not rule on pending motions. In re Mission Consol. Indep. School Dist., 990



15
S.W.2d 459, 461 (Tex. App.Corpus Christi, orig. proceeding); see also In re
Kenneth Fox Supply Co., No. 13-12-00678-CV, 2012 WL 5944961, at *1 (Tex.
App.Corpus Christi Nov. 20, 2012, orig. proceeding) (mem. op., not designated
for publication) (A trial court has a ministerial duty to consider and rule on
motions properly filed and pending before the court within a reasonable time and
mandamus may issue to compel the judge to act.)
When it issued its June 12, 2013 order, the CCA was fully aware of its prior
precedent that speedy trial claims cannot ordinarily be raised in a pretrial
application for a writ of habeas corpus, see, e.g., Ex parte Weise, 55 S.W.3d 617
(Tex. Crim. App. 2001), but that June 12 order also recognized that Mr. Hartfields
speedy trial claim is fundamentally different from others, and that that difference
makes an 11.08 proceeding appropriate in his case. Indeed, Judge Estlinbaum
acknowledged that an application filed pursuant to Article 11.08 is a proper vehicle
when he denied the States motion to dismiss. See Order Denying States Motion
to Dismiss Article 11.08 Habeas Application and Order Setting Hearing on the
Application, State v. Hartfield, No. 13-334 (130th Dist. Court, Matagorda County,
Nov. 27, 2013).
Pretrial habeas should be reserved for situations in which the protection of
the applicants substantive rights or the conservation of judicial resources would be
better served by interlocutory review. Wiese, 55 S.W.3d at 619; see also Ex parte



16
Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010). By holding that Hartfields
speedy trial claim is cognizable through pretrial habeas, the CCA recognized his
substantive rights and the conservation of judicial resources would be better served
by interlocutory review.
The CCAs mandate which made final its order that Hartfield receive an
entirely new trial issued over thirty years ago. As the CCA acknowledged last
June, Hartfield has been imprisoned first by TDCJ and now by Matagorda
County officials under no conviction or sentence ever since. Mr. Hartfield has
been illegally confined for over thirty years. If he is successful on his speedy trial
claim, the indictment against him will be dismissed and the State will not be able
to reindict him. See Strunk v. United States, 412 U.S. 434, 438 (1973); Tex. Code
Crim. Proc. art. 28.061. If he is successful, he will be free.
In its June 12, 2013 order, the CCA recognized that Mr. Hartfields
fundamental rights under the Sixth Amendment would be better served by
interlocutory appeal. Undoubtedly, the egregiously long delay of thirty years by
the State in bringing Mr. Hartfield to trial and the recognition that he has been
confined under no conviction or sentence for that length of time were factors taken
into account by the CCA in reaching its decision that Harfields speedy trial claim
unlike other speedy trial claims would be best served by interlocutory appeal.
In delaying a ruling on Hartfields application, Judge Estlinbaum is subverting the



17
wishes of the Court of Criminal Appeals and compounding the violation of
Hartfields rights under the Sixth Amendment.
Judicial resources would be better served by interlocutory review. Capital
trials can cost a county anywhere between $300,000 and $1,000,000. While
Matagorda Countys decision to utilize the Regional Public Defenders Office has
provided substantial savings to the county in financing defense costs associated
with Hartfields new trial a trial that will likely prove impermissible those costs
have not disappeared but have simply been redistributed. The RPDO has a finite
budget funded mostly through grants from the State and dues paid by the counties
that utilize its services. Diverting a substantial portion of the offices manpower to
prepare for Hartfields long-overdue new trial when speedy trial proceedings will
likely prove the new trial impermissible, diminishes the resources that can be
utilized to provide defenses for other clients of the office who face capital murder
charges and, in many instances, the possibility of being sentenced to death. While
the countys use of the RPDO will control attorney costs for the county, as the date
currently set for Hartfields new trial approaches, expenses will be incurred at an
exponential rate. Reinvestigating a murder that occurred thirty-eight years ago and
conducting a proper mitigation investigation for Hartfield who has been
incarcerated thirty-eight years will undoubtedly both be very expensive
endeavors.



18
II. Mr. Hartfield has no adequate remedy at law.
Mandamus relief will not issue where there is a clear and adequate remedy
at law, such as a normal appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992) (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)). The CCAs
June 12, 2013 opinion implicitly acknowledged that a normal appeal after trial
would not be a clear and adequate remedy for Mr. Hartfield. Prior precedent had
held that a normal appeal does constitute a clear and adequate remedy when a
speedy trial violation is alleged. See, e.g., Smith v. Gohmert, 962 S.W.2d 590,
592-93 (Tex. Crim. App. 1998). Because of that, the extraordinary remedies
pretrial habeas and mandamus are not usually available to a defendant asserting her
right to a speedy trial has been violated. See id. If a normal appeal were an
adequate remedy, the CCA would not have made available the extraordinary
remedy of pretrial habeas corpus. Hartfield has diligently pursued that remedy in
Judge Estlinbaums court. The judges failure to act upon Hartfields application is
a failure to acknowledge the extraordinary circumstances of Hartfields claim.
III. Pursuant to Rule 52.10, this Court should order Hartfield be released
pending the Courts action on this petition.

Rule 52.10 allows this Court to grant any just relief pending the courts
action on the petition. Tex. R. App. P. 52.10 (b). Mr. Hartfield has been held in
custody under no conviction or sentence for over thirty years. As the record below



19
demonstrates, it is highly likely he will prevail on the merits of his speedy trial
claim. Judge Estlinbaums actions in delaying a ruling on Hartfields application
have served only to further compound the egregious violation of Hartfields rights
under the Sixth Amendment. Under Rule 52.10, this Court has the power to
immediately halt the continuing illegal incarceration of Hartfield while this petition
is pending. Failing to do so and allowing him to remain incarcerated while this
petition made necessary only by Judge Estlinbaums failure to act will only
serve to inflict further harm upon Mr. Hartfield.



20
PRAYER FOR RELIEF
Accordingly, Relator respectfully requests that this Court end Mr.
Hartfields illegal incarceration by ordering he be released immediately pursuant to
Rule 52.10(b) and grant mandamus relief ordering the trial court to rule on his
application pursuant to Article 11.08 filed June 20, 2013.
Respectfully Submitted,

s/ David R. Dow
___________________________
David R. Dow
University of Houston Law Center
Texas Bar No. 06064900
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131

s/ Jeffrey R. Newberry
__________________________
Jeffrey R. Newberry
Texas Bar No. 24060966
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-6843
Fax (713) 743-2131

Counsel for Jerry Hartfield



21
CERTIFICATE OF SERVICE

I certify that on the 7th day of April 2014, a true and correct copy of the
above legal document was delivered to the following:

The Honorable John Craig Estlinbaum
Judge, 130th District Court of Matagorda County, Texas
1700 7th Street, Room 317
Bay City, Texas 77414-5094
Tel. (979) 244-7635

The Honorable Steven Reis
Criminal District Attorney
1700 7th Street, Room 325
Bay City, Texas 77414-5094
Tel. (979) 244-7657
Fax (979) 245-9409


s/ Jeffrey R. Newberry
_________________________
Jeffrey R. Newberry


CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
because it has been prepared in a conventional typeface using MS Word in Times
New Roman 14-point font for body text. The petition contains 4,485 words,
excluding the parts exempted by Tex. R. App. P. 9.4(i)(1)


s/ Jeffrey R. Newberry
_________________________
Jeffrey R. Newberry



22
APPENDIX

Exhibit A first motion for leave to file motion for rehearing

Exhibit B rulings on motions for leave to file

Exhibit C letter from Salyer, Hardy, and Hurta to BPP

Exhibit D motion for leave to file second motion for rehearing

Exhibit E mandate

Exhibit F purported commutation

Exhibit G postcard from Wharton County Clerk to CCA

Exhibit H report of Dr. Kenneth Owens

Exhibit I postcards from CCA
Ex.hibit A
I
/
I
NO. 59, 3 4 3
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
JERRY HARTFIELD, Appellant
v.
THE STATE OF TEXAS, Appellee
STATE'S MOTION FOR LEAVE TO FILE
MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW the State Texas, appellee herein, and prays
this Honorable Court for leave to file the State's Motion for
Rehearing in this cause, pursuant to the rules of this Honorable
Court.
Respectfully submitted,
HUTTASH
State Prosecuting Attorney
C01JR7

lN
VI
..
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NQV 6 '9SQ
ocr .e 1sso
thomas Lo
We, Clerk
Exhibit B
Exhibit C
COUNTIES:
MATM;onDA
WHARTON
;
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JACK SALYER
DISTRICT ATTORNEY
23Ao JUDICIAL DISTRICT
POST OFFICE DRAWER 1666
BAY CITY, TEXAS 77414
January 31, 1983
TELEPHONE 34!J,7S08
AREA COP 713
Board of Pardons & Paroles
P, 0, Box 13401
Capital Station
Austin, Texas 78711
Dear Board Members:
Re: Jerry Hartfield
(Death Penalty Case)
'lrhe Court of Criminal Appeals on January 26, 1983,
overruled the State's Motion for Rehearing and held that
one juror was improperly excused under Witherspoon/Adams,
We, the undersigned, respectfully request commutation of
the death sentence to life imprisonment for the fo11Gwin-g-.r.easons:
(1) The Hartfield murder occurred on September 17, 1976,
and it would be extremely difficult for the State to re-try him
after over 6 years has passed, Witnesses are scattered through-
out the State and some of them would be difficult to locate.
(2) The daughter of the murder victim is a key, witness for
.the State and the murder and testifying in the Trial almost de-
/
1 strayed her emotionally. She is stable at this time and seems
to have her life in good repair. Retrial would punish this little
\
0
lady by making her re-live this tragic event in her life. ~
We believe it would be in the best i n t r ~ t of the State and
the victim's family if commutation was granted,
Exhibit D
' .
. .
No. 59,343
IN THE COURT OF CRIMINAL A;;PPEALS
~
FOR THE STATE OF T E X A ~
. REO!IV!O IN .
COURT OF CRIMINAL APPEALS
n:a 1 o 1983
JERRY HARTFIELD, Appellant
v.
THE STATE OF TEXAS, Appellee
MOTION FOR LEAVE TO FILE
STATE'S SECOND MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, appellee herein, and
respectfully urges this Court to grant leave to file its
second motion for rehearing in the above named cause, pursuant
to the rules of the Court.
Respectfully submitted,
ROBERT HUTTASH
State Prosecuting Attorney
~ ~ ~ J .
. ROBERT HUTTASH
Bar I.D. No. 10363000
P.O. Box 12405
Austin, Texas 78711
512/475-4581, 475-0840
Exhibit E
Case: 11-40572 Document: 00511593904 Page: 114 Date Filed: 09/06/2011
Scanned Feb 02, 2007
TRIAl COURT NO. 1794
-
...
-
-
-
-
THE STATE OF TEXAS
Before our Court of Criminal Appeals, on the_J..&t, .. day of .... _ .. fut.!_c:Q ___
A. D.19 ...... the cause upon Appeal to revise or reverse your judgment
between
---------- -------------.:_ __ Appellant;
No ... .59.....3..4;l ____ _
vs.
THE STATE OF TEXAS, Appellee,
was determined; and therein our said Court of Criminal Appeals made its
order in these words:
"This cause' came on to be heard on the Transcript of the record of the
Court below, and the same being inspected, because it is the opinion of
._,
this Court that there was error in the judgment, it is ordered, adjudged and
decreed by the Court that the judgment be reversed and the cause re-
manded for further proceedings in accordance with the opinion of this
Court. and that this decision be certified below for observance.''
The rfotion for Leave to. File State' a .Second Motion for Rehearing Denied.
WHEREFORE,wecomrnandyouto observe the order of our said Court
of Criminal Appeals, in this behalf and in all things to have it duly
nized, obeyed and executed.
WITNESS, the HON. JOHN F. ONioN. Ja. Presiding Judge
of our said Court of Criminal Appeals, with the seal thereof
annexed, at City of Austin, Texas, of
......... Ji!F.ffi-.. _. ______ A. D. 19 Jl.:L
- ,/ ;:..
. r' \... e:

, .. .c .,. THOMAS LOWE
9 .. :';) -:--
. ci\Rt.SOl{ Clerk.

Case: 11-40572 Document: 00511593904 Page: 115 Date Filed: 09/06/2011
Scanned Feb 02, 2007
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Exhibit F
Exhibit G

COURT OF CRIMINAL APPEALS
'
...
-
CLERK'S OFFICE
....
Austin, Texas . 2.-- 83
f .,

Cause No. 59' 343 JERR"X,' HARTFIELD vs State
,..
' //"
r5- Please this card when the execution of the enclosed ;mandate has been carried
,_
out ..
'
Executed on
r-
Sincerely yours,
Thomas Lowe Sentenc_
Clerk t
Title
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Exhibit H
KENNETH L. O'WENS, PH. D.
CLINICAL PsYCHOLOGIST
VlC"rORIA MEDICAL CENTER
1501 E. RED RIVER
VlC"rOR!A, TE:X.'I.S 77901
Psychological Riport
Patient: Jerry Hartfield Hale Ari,e 21
Date of Examination: June 18, 1977
Tests Administered.: Clinical IntervieH
3ehaviorc:.l Observations
We.chsler-Bellevue Scale l
Rorschach
PAGE 125
Hide Range Achievement test, Reading and Spelling sections
Human Figure Drawings
Bender Gestalt
The patient Has a Ll year old black man seen in the :vlharton jail Hhere he was held
on charges of mur.der. The details of these allegations will not be discussed in
this Psychological Report. The referring question involved mental competancy;
portedly the patient l-Ias reared in a poor environment, grew up in Alton, OidahbiD.a,
e.nd only completed the 7th grade,
The patient Has seen in his jail cell. He Has a large coopere.tive black man of Ll
years. He vras initie.lly some11mat apprehensive, but cooperated Hell. He seemed mot:-
iveted to do his best on the Psychological test, fre0uently guessing past his ability
level.
This man is mildly retarded. The vlechsler-Bellevue Full .SCale I .Q. was 58. The Verbal
r.r:,. Has 61 and the Performance HB.s 6<:!. This retardation is linked to cultural/envir-
onmental deprivation 2nd possibly organic !'actors. The quality of responses, the co:r.-
creteness of thinking, the poor spatial visualization, and poor perceptua.l motor per-
formance suggest mild neurological dysfunction. In any event, this patient is no
brighter fuan the I.Q. scores indicate. Thus, his judgement is limited, his ability
to monitor or assess reality and his thinking frequently concrete,
and childlike .
The PsycholoGical Evaluation failed to reveal arry indications of a significant psy-
chosis, a rather typic2.1 personality disorder does accompany this mans mild retarda-
tion. &pecifically, his impulsivity is pronou.."'l.ced, his controls over his actions
are poor, and his ew.otions extremely labile. lfl1en placed in a stress situation, he
tends to react in an explosive, fashion, only about the. conseque-
nces of his acts after they are completed'; .. This represents personality explosiveness
and impulsivity rather than psychotic decompensation. Thus, before, after, and.even
during explosive, :Lnpulsive episode the patier.t is able to discrimilhite right from
lrrong, but because of his lira.i ted intelligence and emotional lability is unable to
utilize this to control his actions effectively.
The questior: of 1eading a:1d 1i!'i ting achievement levels 'I'Jas raised. On the Range
D.chieveme:nt testJ this m2.n obta.ir .. ed a reading grade level of 1.3 years ar:.d a spell-
ing grade level of 1.9 years. He is able to letters and a few extremely
simple three letter t\ords, but t:.:;e.ble to read 1-1ell e:t:cough to interpret 1-1ri tten sent-
er.ces. He is able to lr.dte :1is name but unable to -vrrite even the simplest 1vords. llis
intelligence is sufficiently limited so that he is Ul!s.tle to comprehend 1-:ri tten mat-
erial read to :b.im, if the m2.terial is lil.Uch past early primar,r grade level complex.
,.
Jerry Hartfield
Diagnostic Impressions': 1)
2)
3)
j
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' ~ [ ' . ' /'-; f ~ 1!_)
Kenne . r, ~ e r r s Pn. {)
l:CLO/pb
Impulsive, immature personality .
Hild me:.1tal retardation
Page 2
PAGE 126
Reading and spelling grade levels correspond to first
to high first grade level.
';'
. ,
Exhibit I
-MHS -JDL Document 23-2 Filed 01/29/09 Page 12 of 29 PageiD #:
139
JERRY HARTFIELD APPLICATION NO.
APPLICATION FOR 11.07 WRIT OF HABEAS CORPUS
ACTION TAKEN
Case 6:09-cv-00098-MHS -JDL Document 23-2 Filed 01/29/09 Page 14 of 29 PageiD #:
141
;/scanned Feb 02, 2007
APPLICANT .JERRY HARTFIELD
APPLICATION NO. WR-66,609-0l:<.
APPLICATION FOR WRIT OF MANDAMUS
ACTION TAKEN
APPLICATION FOR LEAVE TO FILE DENIED WITHOUT WRITTEN ORDER.
)
l 81 ~
I DA
-cv-00098-MHS -JDL Document 23-2 Filed 01/29/09 Page 16 of 29 PageiD #:
143
APPLICANT: JERRY HARTFIELD APPLICATION NO. WR:;Y6,609-03
APPLICATION FOR 11.07 WRIT OF HABEAS CORPUS
ACTION TAKEN
DJSMJSSED, SUBSEQUENT APPLICATION. TEX. CODE CRIM. PROC. art. 11.07, 4(a)-
(c). ~ ,.
~ - - - ~ ~ ~
~ ~ - 5 3 ~ o 1
DATE