Opinion
No. 07-17-00079-CV
03-20-2017
IN RE MARTIN RODRIGUEZ, RELATOR
Original Proceeding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Relator Martin Rodriguez has filed a petition for writ of mandamus requesting relief against respondents, the Honorable Phil N. Vanderpool, Judge of the 223rd Judicial District Court of Gray County, and the Honorable Steven R. Emmert, Judge of the 31st Judicial District Court of Gray County. Rodriguez alleges Judge Vanderpool "failed to schedule and conduct a hearing as requested in Relator's Application for Writ of Habeas Corpus, in failing to grant Relator's Application for Writ of Habeas Corpus, and in refusing to release Relator on a personal bond or on a bond Relator can make." Rodriguez alleges Judge Emmert abused his discretion by failing to sufficiently reduce Rodriguez's bail after hearing evidence Rodriguez "could not afford to make a bond in any amount." We will deny the petition.
Background
The following facts are drawn from Rodriguez's petition. Rodriguez was arrested for the offense of aggravated sexual assault of a disabled or elderly person on July 22, 2016. Bail was set at $1,000,000. Unable to afford bail, Rodriguez remained in jail. Once the period of confinement exceeded ninety days without indictment Rodriguez filed an application for writ of habeas corpus in the 223rd District Court. He sought release on a personal bond or a reduction of bail. See TEX. CODE CRIM. PROC. ANN. art. 17.151 (West 2015). Judge Vanderpool did not conduct a hearing on the application but instead signed an order on December 19, reducing Rodriguez's bond to $125,000 and setting conditions. Rodriguez challenged the order by mandamus in this Court, contending he was unable to afford the reduced bail. We denied his petition on January 11, 2017, noting his supporting documents did not show he made Judge Vanderpool aware of the contention made in his petition.
In re Rodriguez, No. 07-16-00462-CV, 2017 Tex. App. LEXIS 223 (Tex. App.—Amarillo Jan. 11, 2017, orig. proceeding) (per curiam, mem. op.).
The following day Rodriguez was indicted in the 31st District Court. On February 16, Rodriguez filed a motion requesting a setting for a hearing on his previously-filed habeas application. At the time his counsel apparently was unaware the case was pending in the 31st District Court. Judge Vanderpool notified counsel of this fact by February 17 email. Judge Emmert conducted an evidentiary hearing on February 23 and reduced Rodriguez's bail from $125,000 to $120,000. The following day Rodriguez's counsel notified Judge Vanderpool and Judge Emmert by email that he could not afford bail of $120,000 and requested release on a personal bond. At the time Rodriguez filed the present petition, he had not received a signed order from Judge Emmert containing his ruling from the February 23 hearing.
Analysis
Entitlement to mandamus in a criminal case requires the relator to establish the trial court failed to perform a purely ministerial duty, and the relator has no adequate legal remedy. In re Cooper, No. 05-14-01193-CV, 2014 Tex. App. LEXIS 10536 (Tex. App.—Dallas Sept. 19, 2014, orig. proceeding) (mem. op.) (citing State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding)). See also State v. Robinson, 498 S.W.3d 914, 922 n.4 (Tex. Crim. App. 2016) (Richardson, J., concurring) ("To establish entitlement to mandamus relief, a relator must satisfy two requirements: 1) there must be no adequate remedy at law to redress his alleged harm; and 2) the act sought to be compelled is purely ministerial") (citing Hill, 34 S.W.3d at 927; Buntion v. Harmon, 827 S.W.2d 945, 947 (Tex. Crim. App. 1992) (orig. proceeding)).
Rodriguez's case is not pending in Judge Vanderpool's court and so far as this record shows Judge Vanderpool has had no control of the case since Rodriguez was indicted in the 31st District Court. Rodriguez has not presented a mandamus record demonstrating a clear abuse of discretion by Judge Vanderpool.
Concerning Judge Emmert, Rodriguez did not present a record containing the complained-of order, nor did he provide us with a reporter's record of the hearing from which the order resulted. See TEX. R. APP. P. 52.7(a)(1),(2) (required contents of record). It is therefore not possible to determine whether Judge Emmert clearly abused his discretion.
Moreover, because we have not seen the court's order and the hearing record, we could not in any event determine that the order is properly reviewable by mandamus. An order denying an application for pretrial habeas corpus relief by release on personal bond or bail reduction is reviewable by appeal. See, e.g., Vasquez v. State, Nos. 03-13-00717-CR, 03-13-00718-CR, 2014 Tex. App. LEXIS 8108, at *2-4 n.2 (Tex. App.—Austin July 25, 2014, no pet.) (mem. op., not designated for publication) (following sister courts' jurisdictional principle that "although appellate courts do not have jurisdiction over interlocutory appeals of motions for bond reductions, they do have jurisdiction over denials of applications for writs of habeas corpus asserting that the amount of bail set was excessive," and collecting supporting cases); Ex parte Dixon, No. 07-14-00433-CR, 2015 Tex. App. LEXIS 2188 (Tex. App.—Amarillo Mar. 6, 2015) (reviewing merits of appeal from the denial of habeas corpus relief for bail reduction), judgm't vacated on other grounds, No. PD-0398-15, 2015 Tex. Crim. App. Unpub. LEXIS 659 (Tex. Crim. App. Sept. 16, 2015) (not designated for publication). Cf. In re Gambling Devices & Proceeds, 496 S.W.3d 159, 164 (Tex. App.—San Antonio 2016, pet. filed) (mandamus in a criminal case requires the relator have no adequate remedy by appeal) (citing Dickens v. Court of Appeals for the Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 548 (Tex. Crim. App. 1987)).
Conclusion
Rodriguez's petition for writ of mandamus is denied.
Per Curiam