Opinion
No. 07-18-00152-CV
06-05-2018
IN RE BRANDON DALE DOSTER, RELATOR
Original Proceeding Arising From Proceedings Before the 47th District Court Randall County, Texas
Trial Court No. 27,514-A; Honorable Dan Schaap, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Relator, Brandon Dale Doster, an inmate proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Dan Schaap to enter an order providing him with free copies of documents to pursue a writ of habeas corpus. For the reasons expressed herein, we deny the requested relief.
BACKGROUND
According to his Application for Writ of Mandamus, Relator was charged in a three-count indictment with unauthorized use of a motor vehicle, possession of a controlled substance, and evading arrest or detention. According to the limited documents before us, in 2017, he agreed to plead guilty to unauthorized use of a motor vehicle, enhanced by two prior felonies, in exchange for fifteen years confinement. He did not appeal his conviction.
On February 13, 2018, he filed a Motion to Obtain Documents and Trial Records without payment of costs in the trial court. In the motion, a copy of which is included with his application, Relator states the requested documents are in the possession of the court reporter for the 320th District Court or in the possession of his court-appointed attorney. Relator asserts a need for the documents "to aid him in the preparation for an Application for Writ of Habeas Corpus challenging the conviction imposed by this Court."
The header of the motion recites it was filed in the "320th Judicial District Court of Randall County, Texas." However, the 320th District Court sits in Potter County.
The same date the motion was filed, Judge Schaap, who presides in the 47th District Court for Randall County, entered a written order denying Relator's motion and citing authority for the proposition that a defendant is not entitled to a free record to pursue post-conviction relief absent a showing that the habeas corpus proceeding is not frivolous and that there is a specific need for the record being sought. See Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993, no pet.).
In response to the trial court's order, Relator filed a more detailed motion contending his habeas corpus proceeding is not frivolous. His motion contains a litany of allegations of defense counsel's negligence and deficient performance as well as challenges to the sufficiency of the evidence to support his conviction. This time, Relator maintains that either the court reporter for the 47th District Court of Randall County or his court-appointed counsel possesses the record.
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)). Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding); In re Johnson, No. 07-16-00123-CV, 2016 Tex. App. LEXIS 4827, at *6 (Tex. App—Amarillo May 5, 2016, orig. proceeding) (mem. op.). Accordingly, we defer to a trial court's factual determinations having evidentiary support but we review de novo the trial court's legal determinations. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding); In re Johnson, 2016 Tex. App. LEXIS 4827, at *6. "A trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker, 827 S.W.2d at 840; In re Johnson, 2016 Tex. App. LEXIS 4827, at *7.
ANALYSIS
An indigent defendant is entitled to a free record for purposes of direct appeal but not for purposes of collateral attack such as a writ of habeas corpus. In re Strickhausen, 994 S.W.2d 936, 937 (Tex. App.—Houston [1st Dist.] 1999, 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) (mem. op.). Relator relies on numerous cases penned by the United States Supreme Court to support his argument that he is entitled to a free record. The cases he relies on all held that a record must be provided at no cost for defendants to pursue meaningful appellate review from adverse proceedings. None of the cases held that a defendant was entitled to a free record to pursue a post-conviction writ of habeas corpus.
See Mayer v. Chicago, 404 U.S. 189, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971) (free record for direct appeal of criminal conviction); Gardner v. California, 393 U.S. 367, 89 S. Ct. 580, 21 L. Ed. 2d 601 (1969) (free record to appeal denial of a writ of habeas corpus); Long v. District Court of Iowa, 385 U.S., 192, 87 S. Ct. 362, 17 L. Ed. 2d 290 (1966) (free record to appeal adverse decision on a writ of habeas corpus); Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 6 L. Ed. 2d 39 (1961) (free record to file a direct appeal from a trial court proceeding);Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 2d 891 (1956) (free record for adequate appellate review).
Relator also relies on De La Vega v. Taco Cabana, 974 S.W.2d 152, 154-55 (Tex. App.—San Antonio 1998, no pet.). De La Vega likewise is inapplicable. De La Vega sued her employer alleging an unsafe work environment and a jury found in favor of Taco Cabana. She appealed the jury's verdict and filed an affidavit of indigence which was contested. The trial court overruled the contest but then verbally granted the court reporter's request to deny De La Vega a free reporter's record of the contest hearing on the ground that her appeal was frivolous. After the appeal was submitted to the appellate court on the clerk's record alone, the court held that De La Vega was constitutionally entitled to a free reporter's record of the contest hearing to determine if the trial court properly applied the law to the facts in finding her appeal to be frivolous. De La Vega does not support Relator's argument that he is entitled to a free record to file a post-conviction writ of habeas corpus.
Judge Schaap ruled on Relator's request for a free record. Relator's second motion filed in response to the ruling is not dated nor file-stamped. He complains of Judge Schaap's failure to rule on his second motion. Without more information on specific dates, the state of the trial court's docket, and other judicial and administrative matters which must be addressed first, we are unable to determine whether sufficient time has passed for the trial court to make a ruling. See Ex parte Barnes, 65 S.W.3d 133, 135 (Tex. App.—Amarillo 2001, orig. proceeding). That being said, this court is not in a position to direct a trial court on how to rule on a motion and a defendant's dissatisfaction with the ruling is not the proper subject of a mandamus proceeding. See In re Watson, No. 07-11-0157-CV, 2011 Tex. App. LEXIS 6493, at *4 (Tex. App.—Amarillo Aug. 15, 2011, orig. proceeding) (mem. op.) (citing In re Washington, No. 09-07-00246-CV, 2007 Tex. App. LEXIS 6449, at *2 (Tex. App.—Beaumont Aug. 16, 2007, orig. proceeding) (mem. op.).
Relator is not prohibited from filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals by the lack of a reporter's record. The Texas Court of Criminal Appeals could provide Relator with any relief to which he may show entitlement.
Relator's Application for Writ of Mandamus is denied.
Per Curiam