in Re Francisco Llamas, Relator

• Court: Court of Appeals of Texas
• Decided: November 22, 2019
• Docket: 07-19-00288-CV
• Status: Published

Opinion

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

No. 07-19-00288-CV ________________________

IN RE FRANCISCO LLAMAS, RELATOR

Original Proceeding Arising From Proceedings Before the 47th District Court Potter County, Texas Trial Court No. 66,587-A; Honorable Dan L. Schaap, Presiding

November 22, 2019

MEMORANDM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Relator, Francisco Llamas, an inmate proceeding pro se, seeks a writ of

mandamus to compel the Honorable Dan L. Schaap to rule on the merits of his Motion

for Free Copy of Court Reporter’s Record from his 2014 conviction for sexual assault of

a child. Relator claims he needs a copy of the reporter’s record to file a post-conviction

writ of habeas corpus for an out-of-time appeal. For the reasons expressed herein, we

conditionally grant mandamus relief. BACKGROUND

Based on the recitations in Relator’s petition, in 2014, pursuant to a plea of “not

guilty,” he was convicted by a jury of multiple counts of sexual assault of a child. Prior to

the jury returning a verdict on punishment, he and the State entered into an agreement

for a twenty-year sentence on each count, to be served concurrently. The trial court then

sentenced him to twenty years confinement.

Relator maintains he is being illegally confined based on a “void finding in the

judgment . . . .” He contends he was coerced by the trial court to change his plea from

“not guilty” to “guilty.” This, he argues, denied him the statutory right to pursue a direct

appeal.

According to the documents included in Relator’s appendix, on December 16,

2018, he filed his Motion for Free Copy of Court Reporter’s Record. He cited two grounds

for requesting a copy of the record. First, he alleged he was denied effective assistance

of counsel during trial. Second, he claimed ineffective assistance of appellate counsel

after he retained counsel to pursue an out-of-time appeal via a writ of habeas corpus

which was never realized due to counsel’s alleged procrastination.

In a letter dated January 3, 2019, the trial court notified Relator that under certain

circumstances, a defendant may be entitled to a free record if he demonstrates a specific

need for the record. The court concluded, however, that it “does not entertain or grant

blanket requests for records in the absence of a showing of a particularized need for the

records.”

2 Relator filed a notice of appeal from the trial court’s letter. This court determined

the letter was not an appealable order and dismissed the purported appeal for want of

jurisdiction. See In re Llamas, No. 07-19-00221-CR, 2019 Tex. App. LEXIS 6143, at *2

(Tex. App.—Amarillo July 17, 2019, orig. proceeding). Relator then proceeded to file the

petition for writ of mandamus now pending before this court.

MANDAMUS STANDARD OF REVIEW

Mandamus is an extraordinary remedy granted only when a relator can show that

(1) the trial court abused its discretion and (2) that no adequate appellate remedy exists.

In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per

curiam). When seeking mandamus relief, a relator bears the burden of proving these two

requirements. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

To establish an abuse of discretion, the relator must demonstrate the trial court

acted unreasonably, arbitrarily, or without reference to any guiding rules or principles.

See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To

establish no adequate remedy by appeal, the relator must show there is no adequate

remedy at law to address the alleged harm and that the act requested is a ministerial act,

not involving 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) (orig. proceeding).

Furthermore, in order to establish a ministerial act, a relator must also show (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).

3 APPLICABLE LAW

An indigent defendant is entitled to a free record for purposes of a direct appeal

but not for purposes of a collateral attack such as a writ of habeas corpus. In re Evans,

No. 07-18-00256-CV, 2018 Tex. App. LEXIS 5476, at *3 (Tex. App.—Amarillo July 18,

2018, orig. proceeding); In re Sanders, No. 07-14-00035-CV, 2014 Tex. App. LEXIS

2335, at *3 (Tex. App.—Amarillo Feb. 27, 2014, orig. proceeding). Generally, a defendant

is not “entitled—either as a matter of equal protection, or of due process—to a free

transcription of prior proceedings” to use in pursuing post-conviction relief. See Escobar

v. State, 880 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993, no pet.). To obtain

a free copy of a record, an inmate must show that the habeas corpus proceeding is not

frivolous and he must show a particularized need for the record being sought. Id. at 784.

A particularized need has been described as a violation of a right that allegedly occurred

during trial. Id.

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). However, the trial court has a reasonable time within which to perform

that ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—

San Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is

dependent on the circumstances of each case. Ex parte Barnes, 65 S.W.3d 133, 134-35

(Tex. App.—Amarillo 2001, orig. proceeding). No bright line demarcates the boundaries

of a reasonable time period. Id. at 135.

4 ANALYSIS

By his sole issue, Relator argues the trial court “prejudged evidence he has not

seen” and abused its discretion in denying him the opportunity to be heard on his motion

and obtain a ruling. Because we have found that the trial court’s letter of January 3, 2019,

was not an appealable order disposing of Relator’s motion, we agree that he is entitled to

a timely ruling on that motion.

While the trial court may have considered its letter as a ruling on Relator’s motion

for a free reporter’s record, a close examination of the letter shows the trial court did not

entertain the motion. Furthermore, the motion has been pending for more than ten

months and the record reflects that the trial court has been aware of the motion for more

than nine months. See In re Smith, No. 07-13-00345-CR, 2013 Tex. App. LEXIS 15159,

at *4 (Tex. App.—Amarillo Dec. 17, 2013, orig. proceeding) (finding that a motion pending

for eight months was an unreasonable delay). Relator has shown he has no adequate

remedy at law and that the remedy he seeks is a ministerial act.

Accordingly, we direct the trial court to enter a formal order ruling on Relator’s

motion. This direction should not, however, be construed as directing the trial court how

to rule on the motion. In re Doster, No. 07-18-00152-CV, 2018 Tex. App. LEXIS 4025, at

*5 (Tex. App.—Amarillo June 5, 2018, orig. proceeding) (citing In re Washington, No. 09-

07-00246-CV, 2007 Tex. App. LEXIS 6449, at *2 (Tex. App.—Beaumont Aug. 16, 2007,

orig. proceeding)). Nor should it be construed as expressing any opinion on the merits of

Relator’s motion. That being said, we instruct the trial court to determine whether Relator

has shown a particularized need for entitlement to a free reporter’s record in its ruling.

5 CONCLUSION

Relator’s Petition for Writ of Mandamus is conditionally granted. We will direct the

clerk of this court to issue writ only in the event the trial court fails to comply with this

court’s directive within thirty days of this opinion.

Per Curiam