Opinion
NO. 12-17-00096-CR
04-19-2017
IN RE: CHARLES RAY HOGAN, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Relator, Charles Ray Hogan, has filed this original proceeding in which he challenges the trial court's failure to release a presentence investigation report (PSI). We deny the petition.
BACKGROUND
In 2004, Relator was convicted of murder. In November 2016, Relator requested a copy of the PSI from the district clerk, but his request was denied. In December, Relator filed a motion with the trial court and requested release of the PSI. The trial court denied the request on January 11, 2017. In February, Relator again requested a copy of the PSI, which the trial court denied on March 13. Relator then filed this original proceeding.
PREREQUISITES TO MANDAMUS
To obtain mandamus relief in a criminal case, the relator must show that he does not have an adequate remedy at law and the act he seeks to compel is ministerial (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). If the relator fails to satisfy either prong of this test, mandamus relief should be denied. Id.
AVAILABILITY OF MANDAMUS
In his petition, Relator asks this Court to order the trial court to release the PSI. Relator's motions in the trial court indicate that the PSI is sought pursuant to article 11.07 of the code of criminal procedure, which addresses postconviction habeas corpus relief. TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2005). The mandamus record, however, is insufficient to determine whether a petition for writ of habeas corpus is pending and whether Relator seeks the PSI in conjunction with a pending petition or whether he seeks the PSI to prepare for the filing of a future petition. See In re Wair , No. 05-15-00100-CV, 2015 WL 350666, at *1 (Tex. App.—Dallas Jan. 28, 2015, orig. proceeding) (mem. op.). The distinction is critical because it determines whether an appellate court has jurisdiction over the petition. Id. Specifically, only when an 11.07 application is not pending, do intermediate appellate courts have jurisdiction to rule on a mandamus petition related to a request for access to documents that could be used in a future habeas application. See Padieu v . Court of Appeals of Texas , Fifth District , 392 S.W.3d 115, 117-18 (Tex. Crim. App. 2013) (orig. proceeding); see also In re Morgan , No. 02-16-00077-CV, 2016 WL 1237858, at *1 (Tex. App.—Fort Worth Mar. 28, 2016, orig. proceeding) (mem. op.); In re Sonesen , No. 12-13-00036-CR, 2013 WL 543473, at *1 (Tex. App.—Tyler Feb. 13, 2013, orig. proceeding) (mem. op., not designated for publication) (stating that appellate courts lack jurisdiction to grant mandamus relief in matters related to postconviction writ applications in felony cases).
Moreover, an indigent defendant is generally only entitled to a free record for purposes of filing a postconviction habeas application when he shows that the application is not frivolous and there is a specific need for the records that are sought. Sonesen , 2013 WL 543473, at *1. Relator fails to make either showing in this proceeding. See id . Accordingly, we conclude that Relator has not demonstrated an entitlement to mandamus relief. See Young , 236 S.W.3d at 210.
DISPOSITION
Because Relator has not shown his entitlement to mandamus relief, we deny his petition for writ of mandamus. Opinion delivered April 19, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
CHARLES RAY HOGAN, Relator V. HON. CHRISTI J. KENNEDY, Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Charles Ray Hogan; who is the relator in Cause No. 114-1942-03, pending on the docket of the 114th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on April 5, 2017, and the same having been duly considered, because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.