in Re Martin Rodriguez, Relator

• Court: Court of Appeals of Texas
• Decided: January 11, 2017
• Docket: 07-16-00462-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00462-CV

IN RE MARTIN RODRIGUEZ, RELATOR

Original Proceeding

January 11, 2017

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Relator, Martin Rodriguez, has filed a petition for writ of mandamus requesting

the Court to order the Respondent, the Honorable Phil N. Vanderpool, Judge of the

223rd Judicial District Court of Gray County, to vacate his December 19, 2016 Order

Reducing Bond and Setting Conditions, grant Rodriguez’s application for writ of habeas

corpus seeking release because of delay under Article 17.151 of the Texas Code of

Criminal Procedure, and release Rodriguez on a personal bond or a bond that he can

afford. We deny the petition.

According to his petition, Rodriguez was arrested for the offense of aggravated

sexual assault of a disabled or elderly person on July 22, 2016, and has been continuously confined in the Gray County Jail since that time because he is unable to

post the $1,000,000 bond set by Respondent. Rodriguez also contends that no

indictment has been returned against him on this charge. On the basis of these facts,

Rodriguez filed an application for writ of habeas corpus. See TEX. CODE CRIM. PROC.

ANN. art. 17.151 (West 2015). Without holding a hearing, Respondent issued his

December 19 Order, which reduced the $1,000,000 bond to $125,000. In response to

this order, Rodriguez filed the instant original proceeding.

“Equity is generally not served by issuing an extraordinary writ against a trial

court judge on a ground that was never presented in the trial court and that the trial

court thus had no opportunity to address.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—

Houston [14th Dist.] 2011, orig. proceeding). For that reason, mandamus relief

generally requires the relator to have made a predicate request for an action and the

trial court’s refusal of the request. Id. (citing Axelson, Inc. v. McIlhany, 798 S.W.2d 550,

556 (Tex. 1990)). An exception to this general rule is when such a request would have

been futile. Id.

In the present case, Rodriguez’s application for writ of habeas corpus stated that

he is unable to post the $1,000,000 bond and requested Respondent to enter an order

releasing him on a personal recognizance bond or reducing the $1,000,000 bond.

Respondent entered an order reducing Rodriguez’s bond to $125,000. Nothing in the

documents filed in support of Rodriguez’s petition indicates that Rodriguez ever

presented to the trial court a contention that he was unable to post the reduced bond.

Further, in his response filed at our request, Respondent states that, “[a]fter receipt of

the December 19 order, Relator’s counsel did not inform the trial court the reduced bond

2 was not affordable and did not request a hearing.” Especially considering Respondent’s

reduction of the amount of the bond upon the filing of Rodriguez’s application for writ of

habeas corpus, we cannot conclude that a subsequent request for a lower bond would

have been futile. Consequently, it was incumbent upon Rodriguez to inform

Respondent that the reduced bond remained unaffordable before seeking the

extraordinary remedy of mandamus relief. See Ex parte Okun, 342 S.W.3d 184, 186

(Tex. App.—Beaumont 2011, orig. proceeding) (reaching similar conclusion on appeal

of habeas corpus application filed after reduction of bail). Rodriguez’s failure to do so is

determinative of this petition.

For the foregoing reasons, Rodriguez’s petition for writ of mandamus is denied.

Per Curiam