Commission for Lawyer Discipline v. Stephen T. Leas

• Court: Court of Appeals of Texas
• Decided: January 23, 2012
• Docket: 13-11-00546-CV
• Status: Published

Opinion

NUMBER 13-12-00032-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE LOUIS A. OLIVAREZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam1

Relator, Louis A. Olivarez, pro se, filed a petition for writ of mandamus in the

above cause on January 20, 2012, asking this Court to direct the respondent, the

Honorable W. C. Kirkendall, Presiding Judge of the 2nd 25th District Court of Lavaca

County, Texas, to hear and grant relator’s motion to obtain copies of the trial transcripts

and all court records pertaining to relator’s criminal conviction in trial court cause

number 02-01-8553CR. According to the petition, relator has exhausted his state court

remedies and is seeking these records for the purposes of filing a motion for new trial 1 See TEX. R. APP. P. 52.8(d) (―When denying relief, the court may hand down an opinion but is not required to do so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). based on newly discovered evidence. See TEX. CODE CRIM. PROC. ANN. art. 40.001

(West ) (―A new trial shall be granted an accused where material evidence favorable to

the accused has been discovered since trial.‖). We deny the petition for writ of

mandamus for the reasons stated herein.

To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied. See id. It is relator’s burden to properly request and

show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.–Houston [1st Dist.] 1992, orig. proceeding) (―Even a pro se applicant for a writ of

mandamus must show himself entitled to the extraordinary relief he seeks.‖).

In addition to other requirements, relator must include a statement of facts

supported by citations to ―competent evidence included in the appendix or record,‖ and

must also provide ―a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the appendix or record.” See generally TEX.

R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record

sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the

required contents for the appendix); R. 52.7(a) (specifying the required contents for the

record).

In this case, the petition for writ of mandamus fails to comply with the Texas

Rules of Appellate Procedure. See generally id. R. 52.3. The petition is defective

2 because, inter alia, it does not follow the required format for such petitions and it does

not include the required certification or certified or sworn copies of "every document that

is material to relator’s claim for relief." See id. R. 52.3(j), 52.7(a).

Relator cites numerous authorities which stand for the proposition that an

indigent criminal defendant is entitled to a free copy of the trial record for the first appeal

from his conviction. See, e.g., Griffin v. Illinois, 351 U.S. 12, 19-20 (1956). However,

an indigent criminal defendant is not entitled, either as a matter of equal protection or of

due process, to a free record of prior proceedings for use in pursuing post-conviction

relief. United States v. MacCollom, 426 U.S. 317, 322-23 (1976); In re Trevino, 79

S.W.3d 794, 796 (Tex. App.—Corpus Christi 2002, orig. proceeding); Escobar v. State,

880 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993, per curiam order). To

obtain a free record for use in a post-conviction proceeding, a relator must show that the

proceeding is not frivolous and there is a specific need for the trial records that are

sought. See In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio 1998, orig.

proceeding); Eubanks v. Mullin, 909 S.W.2d 574, 576–77 (Tex. App.—Fort Worth 1995,

orig. proceeding); Escobar, 880 S.W.2d at 783. Relator has not satisfied these

requirements.

Finally, we note that relator asserts that he is innocent, which suggests the relief

he seeks might properly be addressed through habeas corpus. This Court has no

jurisdiction over matters related to post-conviction relief from a final felony conviction.

TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3 (West 2008); Ater v. Eighth Court of Appeals,

802 S.W.2d 241, 243 (Tex. 1991); Board of Pardons & Paroles ex rel. Keene v. Court of

Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53

3 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) Accordingly, if

relator is seeking post-conviction habeas relief from a final felony conviction, we are

without jurisdiction to issue mandamus.

The Court, having examined and fully considered the petition for writ of

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly,

relator’s petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 23rd day of January, 2012.