in Re Alex J. Hernandez, Relator

• Court: Court of Appeals of Texas
• Decided: September 16, 2014
• Docket: 07-14-00257-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00257-CV ________________________

IN RE ALEX J. HERNANDEZ, RELATOR

Original Proceeding Arising from the 237th District Court Lubbock County, Texas Honorable Les Hatch, Presiding

September 16, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Alex J. Hernandez, an inmate proceeding pro se and in forma pauperis seeks a

writ of mandamus to compel the Honorable Les Hatch to respond to his Motion Nunc

Pro Tunc by which he seeks to have cumulative sentences in cause numbers 98-

427711, 98-427742 and 98-428109 corrected.1 For the reasons expressed herein, we

deny Relator’s request.

1 Relator has complied with the requirements of chapter 14 of the Texas Civil Practice and Remedies Code. BACKGROUND

Relator’s petition for writ of mandamus is accompanied by a copy of his Motion

Nunc Pro Tunc bearing a file stamp from the Lubbock County District Clerk of February

3, 2014. In that motion, Relator argues he is being illegally confined by the Texas

Department of Criminal Justice. According to his motion, he was sentenced to twenty

years for burglary of a habitation in cause number 98-427711, seven years for

retaliation in cause number 98-427742 and ten years for aggravated kidnapping in

cause number 98-428109. He asserts the twenty-year sentence was “cumulated

concurrent” with the other two sentences commencing on December 8, 1998.

According to Relator, the judgments in the latter two cause numbers reflect the

sentences are to “run concurrent” with the twenty-year sentence. Appellant indicates he

has made parole on the twenty-year sentence and is now illegally confined on the seven

and ten-year sentences due to TDCJ cumulating the sentences.

According to his motion, Relator has made several attempts to correct the error

on his sentences to no avail. He now requests that this Court review the underlying

judgments and grant him relief. Relying on Odlozelik v. State, 837 S.W.2d 825 (Tex.

App.—Tyler 1992, no pet.), he contends the judgments are inconsistent and constitute

an improper stacking of sentences in violation of his constitutional rights.

MANDAMUS STANDARD OF REVIEW

Mandamus relief is extraordinary. In re Braswell, 310 S.W.3d 165, 166 (Tex.

App.—Amarillo 2010, orig. proceeding) (citing In re Southwestern Bell Telephone Co.,

L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding)). AMandamus issues only to

2 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 satisfy three requirements: (1) a legal duty to perform; (2) a demand for

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979).

Initially, we address Relator’s failure to comply with most of the mandatory

requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. See generally

TEX. R. APP. P. 52.3(a)-(k). Although Relator has included a copy of the motion pending

in the trial court, he has not included copies of the three judgments he asserts will show

his sentences should have run concurrently. Without those judgments it would be

impossible for this Court to determine any appropriate relief.

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). Relator has

not provided this Court with a sufficient record to determine whether he is entitled to

mandamus relief. See Walker, 827 S.W.2d at 837. See also In re Bates, 65 S.W.3d

133, 135 (Tex. App.—Amarillo 2001, orig. proceeding).

3 CONCLUSION

Relator’s petition for writ of mandamus against the Honorable Les Hatch is

denied.2

Patrick A. Pirtle Justice

2 A writ of habeas corpus filed pursuant to article 11.07 of the Texas Code of Criminal Procedure is a more appropriate avenue for review of Relator’s sentences. See Ex parte Salinas, 184 S.W.3d 240 (Tex. Crim. App. 2006). 4