Cruz Tijerina v. State

Opinion

NO. 07-05-0369-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 5, 2007

______________________________

CRUZ TIJERINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-406077; HONORABLE BRADLEY UNDERWOOD, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Cruz Tijerina filed a notice of appeal following his conviction for possession of a controlled substance, cocaine, and the accompanying sentence of incarceration. We agree with appointed counsel's conclusion that the record fails to show any meritorious issue which would support the appeal and affirm the trial court's judgment.

Appellant, while represented by counsel, entered an open plea of guilty to the charged offense. Appellant waived his right to a jury trial and, following hearing, the trial court rejected appellant's request to be placed on community supervision and assessed punishment at five years confinement.

Counsel for appellant has filed a motion to withdraw and a brief in support pursuant to Anders v. California, 386 U.S. 738, 744-45 (1967). The brief discusses the factual and procedural history of the case and evidence presented. In conformity with counsel's obligation to support the appeal to the best of his ability, Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, pet. ref'd), the brief discusses four potential issues on appeal and explains why they do not show reversible error. Counsel thus concludes the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson, 885 S.W.2d at 645. By letter, this court also notified appellant of his right to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant has filed a letter with this court in which he indicates he has been unsuccessful in finding any grounds to proceed with a response, and asks us to review the record.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). If this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

Our review of counsel's brief, including his discussion of potential appellate issues, and the record convinces us that appellate counsel conducted a thorough review of the record. We also have independently examined the entire record in the case to determine whether there are any non-frivolous grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75 (1988); Stafford v. State, 813 S.W.2d at 511. We have found no such grounds. After reviewing the record before us, we agree with counsel that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

Accordingly, counsel's motion to withdraw is granted ⁽¹⁾ and we affirm the judgment of the trial court.

James T. Campbell

Justice

Do not publish.

1. In granting counsel's motion to withdraw, however, we remind counsel of the "educational"duty to inform appellant of his right to file a pro se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006).

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NO. 07-10-0395-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 16, 2010

______________________________

IN RE ALFRED LEE STONE, RELATOR

_________________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Relator, Alfred Lee Stone, proceeding pro se and in forma pauperis, has filed a myriad of documents and pleadings in this Court.[1]  Included within those documents is a pleading entitled Original Writ of Mandamus, wherein Relator requests this Court to compel the Honorable David L. Gleason, retired judge of the 47th District Court of Potter County, Texas,[2] to rule on a number of motions purportedly filed with the trial court.  In addition to seeking mandamus relief, by separate correspondence received the same day, Relator has filed a Motion to Suspend Writ of Mandamus, requesting this Court to suspend the writ of mandamus until a hearing is held and "judgment" entered on his Motion to Reform Judgment and Sentence.  For the reasons expressed herein, we deny the request for mandamus relief, deny the request to suspend this mandamus proceeding, and deny the motions ancillary to this mandamus proceeding.

Background

            Each of the documents filed by Relator relates to a prior conviction in cause number 31,986-A, in the 47th District Court in and for Potter County, Texas.  In that cause, Relator was sentenced to twenty years confinement for the offense of aggravated assault.  The records of this Court reflect that on May 9, 1994, Relator filed a direct appeal of that conviction; however, on August 6, 1994, he filed a pro se motion to dismiss the appeal.  By opinion dated November 1, 1994, issued in cause number 07-94-0185-CR, this Court dismissed Relator's appeal, noting that no motion for rehearing would be entertained and that mandate would immediately issue. 

            On January 6, 1997, Relator filed a pro se motion requesting that this Court "dismiss" its 1994 dismissal of his original appeal.  That motion was overruled for want of jurisdiction by opinion dated January 8, 1997, issued in the same appellate cause number.

            Underlying the documents and pleadings filed by Relator in this proceeding is his attempt to again challenge his 1994 aggravated assault conviction.  At the heart of those pleadings is Relator's Original Writ of Mandamus, wherein he requests that this Court compel the Honorable David L. Gleason to hold a hearing and rule on his pending "motions and pleadings."  Among other arguments, he asserts the evidence in support of his conviction was legally insufficient, specifically, the evidence to support the element of serious bodily injury.[3]  Relator also contends he was denied effective assistance of counsel, denied an impartial jury, and was convicted on a defective indictment.  Numerous other documents relating to the appellate record in 1994 have also been filed.[4]  According to Relator's certificates of service, most documents were filed in the trial court on or about July 6, 2010; however, none of those documents bears a file stamp date.  On September 9, 2010, he filed a Notice of Mandamus against the Honorable David L. Gleason and a Demand for Performance.

Analysis

Initially, we note that Relator has failed to comply with mandatory requirements of Rule 52.3 of the Texas Rules of Appellate Procedure.  Specifically, the numerous documents filed outlining the matters about which he complains are not certified or sworn copies as required by Rule 52.3(k)(1)(A).  Neither do the motions accompanying his petition for writ of mandamus bear a file stamp date reflecting how long he has awaited rulings.  A party proceeding pro se is not exempt from complying with rules of procedure.  See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).  While this reason alone would be a sufficient basis for denying the relief requested, in the interest of judicial economy, we deem it appropriate to address the merits of Relator's requested relief.

Standard of Review

Mandamus relief is an extraordinary remedy.  In re Southwestern Bell Telephone Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding).  "Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.@  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).  To show entitlement to mandamus relief, a relator must (1) show that he has no adequate remedy at law to redress the alleged harm and (2) the act sought to be compelled is ministerial and does not involve a discretionary or judicial decision.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003).  Relator's request fails in both respects.

Adequate Remedy at Law

First, the right to appeal a criminal conviction is created by statute. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006).  See also McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006).  Direct appeal is the avenue for appealing sufficiency of the evidence.  McKinney, 207 S.W.3d at 374.  There is but one direct appeal; "[t]here is no second bite at the direct appeal apple."  King v. State, 125 S.W.3d 517, 520 (Tex.Crim.App. 2003).  Appellant exercised his right to a direct appeal in 1994 and voluntarily chose to have his appeal dismissed.  Relator had an adequate remedy at law by direct appeal in 1994 to raise the issues he now attempts to present through this original proceeding.  Mandamus will not lie when there was an adequate remedy by appeal.  In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004).  Secondly, to the extent that Relator's complaints were not cognizable in his direct appeal, he has had, and still has, the right to file a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure.[5]

Ministerial Act

            When a motion is properly pending before a trial court, the act of considering and ruling upon the motion is a ministerial act.  Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992).  The trial court has, however, a reasonable time within which to perform its ministerial duty.  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.BSan Antonio 1997, orig. proceeding).  Whether a reasonable period of time has lapsed is dependent on the circumstances of each case.  Barnes v. State, 832 S.W.2d 424, 426, (Tex.App.BHouston [1st Dist.] 1992, orig. proceeding).

            The party requesting relief must provide a sufficient record to establish his entitlement to mandamus relief.  See Walker, 827 S.W.2d at 837.  See also In re Bates, 65 S.W.3d 133, 135 (Tex.App.BAmarillo 2001, orig. proceeding).  The record must show that the motion of which Relator complains was presented to the trial court and that it refused to act.  See generally In re Villareal, 96 S.W.3d 708, 710 n.2 (Tex.App.BAmarillo 2003, orig. proceeding) (filing something with the district clerk does not demonstrate that a motion was presented to the trial court).  See also In re Chavez, 62 S.W.3d 225, 228 (Tex.AppBAmarillo 2001, orig. proceeding).  

            According to Relator's documents, the motions he seeks to have us compel the trial court to rule on were filed on July 6, 2010, and a demand for performance was filed on September 9th.  Assuming, arguendo, that the motions were brought to the attention of the trial court, we decline to hold that this period of time constitutes an unreasonable delay in which to perform a ministerial duty.  Therefore, Relator has not shown himself entitled to mandamus relief.

Motion to Suspend Writ of Mandamus and Ancillary Motions

            While asking for mandamus relief, at the same time Relator has asked us to suspend any mandamus relief.  Notwithstanding the obvious incongruity of these requests, because Relator is not entitled to mandamus relief, he has not, and cannot, show himself entitled to suspend the granting of that relief.  For the same reason, he has not, and cannot, show himself entitled to any motion relief ancillary to his mandamus proceeding.

            Accordingly, we deny the request for mandamus relief, deny the request to suspend this mandamus proceeding, and deny any motion relief ancillary to this proceeding. 

                                                                                    Patrick A. Pirtle

                                                                                          Justice

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[1]Relator has filed a document entitled Original Writ of Mandamus, which we construe as a petition for writ of mandamus, together with a Motion to Suspend Writ of Mandamus, which we construe as a motion to abate the mandamus proceeding initiated by his Original Writ of Mandamus.  Additionally, Relator has filed (1) a Motion to Supplement the Record, (2) a Request for Service, Filing of Papers, (3) a Motion to Forward the Record, (4) a Motion to Withdraw the Record on Appeal, (5) a Motion for Judgment of Acquittal, (6) a Motion to Reform Judgment and Sentence, and (7) a Request for Serving and Filing of Pleadings and Other Papers.  In addition to the documents purporting to seek affirmative relief, Relator has filed an Affidavit of Inability to Pay Costs on Appeal, two separate documents entitled Proof of Service, and a document entitled Service of the Record on All Parties.

[2]Judge Gleason was succeeded by the Honorable Hal Miner, who has since been succeeded by the Honorable Dan Schaap.  Rule 7.2(a) of the Texas Rules of Appellate Procedure provides for an automatic substitution of a public officer where appropriate.

[3]Legal insufficiency and other arguments are raised in Relator's "Motion to Reform Judgment and Sentence," "Motion to Vacate Judgment and Sentence," and "Motion for Judgment of Acquittal."

[4]"Motion to Withdraw Record on Appeal," "Request for Service and Filing of Papers," "Motion to Supplement Record," and "Motion to Expand the Records."

[5]For example, Relator's claim of ineffective assistance of counsel may be cognizable by writ of habeas corpus.