Petition for Writ of Certiorari — Jason Delacerda, Petitioner v. Texas

No.

JASON DELACERDA, § INTHESUPREME COURT OF THE

Petitioner

vs. § UNITED STATES OF AMERICA

THE STATE OF TEXAS § WASHINGTON, D.C.

Respondent

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The petitioner, JASON DELACERDA, asks leave to file the attached petition

for a writ of certiorari without prepayment of costs and to proceed in forma pauperis.

Attached is a copy of the order of the 356" District Court of Hardin County,

Texas, in this case, Cause No. 21284, redacted to remove addresses and non-party

personal information, appointing the undersigned counsel Douglas M. Barlow to

represent petitioner Jason Delacerda for purposes of direct appeal of his conviction

and sentence of death. Texas law provides that appointed counsel has a duty to

continue representation until the appellate process is completed:

“Art. 26.04. Procedures for Appointing Counsel.

(j) An attorney appointed under this article shall:

(2) represent the defendant until charges are dismissed, the defendant

is acquitted, appeals are exhausted, or the attorney is permitted or

ordered by the court to withdraw as counsel for the defendant after a

finding of good cause is entered on the record;” (Emphasis added.)

Texas Code of Criminal Procedure, Art. 26.04(j)(2)

In Texas, consideration of the filing of a petition for writ of certiorari is part

of that appellate process. In White v. State, 543 S.W.2d 366 (Tex. Crim. App. 1976),

the Texas Court of Criminal Appeals addressed that issue and the appeal process,

indicating that the process includes a petition for writ of certiorari, as reflected at

page 368:

“Our research reveals that the word ‘appeal’ has not been construed in

Texas by an appellate court having criminal jurisdiction since 1840. In

that year, in Republic v. Smith, Dallam 407, the Supreme Court of the

Republic of Texas defined an appeal (quoting Blackstone) as ‘a

complaint to a superior court of injustice done by an inferior one.’ Mr.

Black gives a similar definition. Black's Law Dictionary, supra, at 124.

See also Booth v. Tex.Emp.Ins.Assn., 132 Tex. 237, 123 S.W.2d 322

(1938); Commercial Standard Ins. Co. v. Cotton, 443 S.W.2d 423

(Tex.Civ.App. -- Eastland 1969, writ refused).

“Following these definitional guidelines, it seems clear that a petition

for certiorari, like a writ of error in Texas practice, is an ‘appeal,’

albeit a discretionary one. Hart v. State, supra. Cf. 28 U.S.C. USS. S.

Ct. Rules 11, 19,23; Durham v. United States, 401 U.S. 481, fn. at 483,

28 L. Ed. 2d 200, 91 S. Ct. 858, (1971). To say that review by certiorari

does not constitute an appeal is to make a distinction without substance,

since such a review necessarily involves an attempt to persuade a

superior court to correct the error of a lower court.” (Emphasis added.)

Thus counsel herein, having been appointed by the trial court as appellate

counsel following petitioner’s conviction and sentence of death, has a duty to

represent petitioner concerning the filing of a petition for writ of certiorari.

Based upon the indigency of the petitioner as set out herein and the

appointment of the undersigned counsel, petitioner requests that this Court grant

leave to proceed with the filing of the petition for writ of certiorari accompanying this

request, without prepayment of costs, and by and through appointed counsel of record

herein.

( “Respectfully submitted,

wy 4S A

Douglas M. Barlow

Attorney for Petitioner

4717 Johnson Creek Loop

College Station, TX 77845

Telephone: (979) 703-8181

Texas State Bar #01753700

email: barlowlawfirm@gmail.com