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NO - WR - : To The Judges of The Court of Criminal Appeals
NO - WR - : To The Judges of The Court of Criminal Appeals
RECEIVED
COURT OF CRIMINAL APPEALS
IN THE 7/14/2020
COURT OF CRIMINAL APPEALS DEANA WILLIAMSON, CLERK
AT AUSTIN, TEXAS
and Dan Cogdell, and pursuant to Tex. R. App. P. 72.1, and Tex. Const.
art. V, sec. 5(c), files this Motion ["Motion"] for Leave to File His Original
of direct criminal contempt and committing him to the Harris County Jail.
bond, and in support thereof will show this Court the following:
1
1. Concomitantly with the filing of this Motion, Applicant is filing
with the Clerk of this Court his Original Application for Petition for Writ
Motion for all intents and purposes, as though set forth herein verbatim.
Respondent on June 30, 2020, and ordered to serve 180 days in the Harris
County Jail, probated for six months, and a term of three days in the
1
Tab 2.
2
Tab 15. See also ,vvvw.dolcefino.com (last visited July 6, 2020); David Barron, "Wayne
Dolcefino ready for his second act," \vww.houstonchronicle.com, Dec, 18, 2012 (last visited July
6, 2020).
3
Id
2
4. According to Applicant's physician, Applicant, age 63, suffers from
• severe pain in both of his feet and ankles that creates a high risk of
developing infections in these areas and ultimate loss of his limbs. 4
4
Tab 14.
5
See e.g., Ex parte Eureste, 725 S.W.2d 214, 216 (Tex.Crim.App. 1986)("There is no
remedy or right of appeal from an order of contempt. Thus, there can be no valid appeal bond in
such situations.").
6
See id. ("The proper course ofreview from a contempt order ... is by original application
for writ of habeas corpus.").
,.,
.)
deprives this Court of jurisdiction to hear this original matter;
deny leave to file Applicant's Petition. 8 Two factors obviate this potential
dismiss his unauthorized notice of appeal instanter, 9 and (2) trial counsel's
affidavit 10 reveals his decision to secure his at-risk 11 client's release from
7
Valenciana v. State, 720 S.W.2d 523, 524 (Tex.Crim.App. 1986)("The fountain head of
constitutionality of bail conditions is that they be based upon standards relevant to the purpose of
assuring the presence of [the] defendant.).
8
See Ex parte Eureste, 725 S. W.2d at 216 (dismissing original application for writ of habeas
corpus because applicant was "not under restraint under the contempt order attacked in his habeas
application nor by the invalid bond entered into in the district court.").
9
Tab 21. Once this motion is granted, his unauthorized bond will have no force or effect
as it is necessarily a creature of, and authorized by, the unauthorized notice of appeal.
10
Tab 13 (affidavit of Cordt Akers, Applicant's trial counsel).
11
See \Vvvw.cdc.gov (detailing how those individuals over age 60 and those with pre-existing
medical conditions are infinitely more at risk for contracting and potentially dying from COVID-
19)(1ast visited July 6, 2020).
4
the Petri dish of COVID-19 infections at the Harris County Jail 12 on an
authorized bond was the antithesis of a free and voluntary choice on trial
was at large on this unauthorized bond, a critical fact this Court did not
learn until oral argument after it filed and set the matter. 15 By contrast,
12
Gabrielle Banks and St. John Barned-Smith, "Locked inside: a COVID-19 outbreak at
Harris County Jail was the 'nightmare scenario.' Then it actually happened."
www.houstonchronicle.com (last visited July 6, 2020).
13
As one judge on the Fifth Circuit Court of Appeals has so succinctly stated in this regard,
"These are difficult times. Many have suffered enormous loss. Many worry about what is coming
next." Texas Democratic Party v. Abbott, 961 F.3d 389,413 (5 th Cir. 2020)(Ho, J., concurring).
14
Ex parte Eureste, 725 S. W.2d at 215 ("No request was made [by applicant] to be released
on a habeas corpus bond ... ").
15
Id. ("[N]o mention was made that [applicant] was now on 'bond.' The pleadings left the
impression that applicant was still in jail.").
5
time unless trial counsel submitted to Respondent's demand, his consent
was the antithesis of a decision freely and voluntary made, and was mere
vitiated by the spirit and tenor of the "necessity" defense that mandates:
While obviously not a perfect fit - trial counsel, after all, was not
16
Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Flores v. State, 172 S.W.3d 742,
749 (Tex.App.- Houston [14th Dist.] 2005, no pet.).
17
See Exparte Reposa, 541 S.W.3d 186, 192 (Tex.Crim.App. 2017)(Alcala, J.,joined by
Richardson and Newell, JJ., dissenting)("This Court thus has authority to release on bond an
individual such as applicant who has been held in contempt of court during the pendency of his
original habeas proceedings challenging that judgment.")(citations omitted).
18
Tex. Penal Code, sec. 9.22.
6
his duty to seek an authorized bond in this Court - the desirability and
County Jail clearly outweighed the "harm" the law sought to prevent by
Applicant is entitled to the relief this Court would have been obligated to
Applicant asks no more than that this Court afford him that relief now.
and conditions of his "appeal bond" have caused him to labor under
and because "the restraints on his liberty [are] severe and immediate." 21
9. The law does not require doing a useless act to avoid forfeiture of
19
Art. 11.22, TEX. CODE CRIM. PROC. defines "restraint" as "the kind of control which one
person exercises over another, not to confine him within certain limits, but to subject him to the
general authority and power of the person claiming such right." Ex parte Ormsby, 676 S.W.2d 130,
132 n. 4 (Tex.Crim.App. 1984).
20
Ex parte Casillas, 25 S.W.3d 296,297 n. 1 (Tex.App.- San Antonio, 2000, orig. proc.).
21
Ex parte Trillo, 540 S.W.2d 728, 731 (Tex.Crim.App. 1976).
7
a claim. 22 It is also true the law did not require the doing an act requiring
sentence for direct contempt could have easily become - and might yet be
a death sentence - to avoid forfeiture of the claim set out in his Petition.
ensuring ... that legal proceedings appear fair to all who observe them." 23
a scenario that is impossible unless this Court holds that the substance of
release from the COVID-19-ridden Petri Dish of the Harris County Jail.
22
Saenz v. State, 474 S.W.3d 47, 52 n. 3 (Tex.App.- Houston [14th Dist.] 2015, no pet.).
23
Bowen v. Carnes, 343 S.W.3d 805, 816 (Tex.Crim.App. 2011).
8
Applicant prays that this motion be granted and this Court grant
leave to file the attached Original Petition for Writ of Habeas Corpus, and
RESPECTFULLY SUBMITTED,
DAN COGDELL
Bar No. 04501500
402 Main Fourth Floor
Houston, Texas 77002
(713) 426-2244 PHONE
dan@cogdell-law .corn
CERTIFICATE OF SERVICE
served on all counsel of record via electronic filing on July 13, 2020.
BRIAN W. WICE