Opinion
No. 07-16-00112-CR
03-18-2016
IN RE PHILLIP LEO TORRES, JR., RELATOR
Original Proceeding
Arising Out of Proceedings before the 100th District Court In and For Hall County, Texas Trial Court No. 3616; Honorable Stuart Messer, Presiding
MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Relator, Phillip Leo Torres, Jr., seeks a writ of mandamus to compel Judge Stuart Messer to rule on his writ of habeas corpus filed pursuant to article 11.072 of the Texas Code of Criminal Procedure. For the reasons explained herein, we deny Relator's petition.
Article 11.072, entitled "Procedure in Community Supervision Case," establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or judgment of conviction ordering community supervision. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015).
BACKGROUND
By his petition for writ of mandamus, Relator contends Judge Messer has failed to perform a ministerial duty, to-wit: sign an order ruling on his writ of habeas corpus relief which he contends he mailed to the District Clerk on or about September 16, 2015. Included with his petition is a copy of his writ of habeas corpus. In his request for habeas corpus relief, he challenges his deferred adjudication community supervision of eight years for aggravated assault with a deadly weapon in trial court cause number 3616. He was later adjudicated guilty of the offense and now contends the prosecution alleged a second offense of aggravated assault against the same victim but on a different date in a "Stipulation of Evidence."
The copy provided bears no file stamp. It is a handwritten duplicate "signed on this 8th day of March 2016," the same date as the petition for writ of mandamus. We assume Relator generated this document solely for the purpose of including it with the petition for writ of mandamus. --------
Relator further asserts that the complaint and information in the underlying case are void thus bringing the validity of his deferred adjudication community supervision into question. Finally, Relator contends that both his trial counsel and appellate counsel were ineffective.
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 issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief, a relator must satisfy three requirements: (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).
ANALYSIS
Initially, we address Relator's failure to provide this court with a sufficient record to determine whether he is entitled to mandamus relief. Even with a liberal construction, his petition does not satisfy most of the mandatory requirements of Rule 53.2 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(b), (c), (d), (f), (g), (h). Most importantly, Relator has not included an appendix with certified or sworn copies of the documents that are the basis for his complaints. Id. at (k)(1)(A). Although we are not unsympathetic to the plight of an inmate's pro se status, it does not exempt him from complying with rules of procedure. See Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Furthermore, as a general rule, mandamus is not available to compel a trial court to perform an act if the action has not first been requested and then refused by the trial court. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (holding that a party's right to mandamus relief generally requires a predicate request for action and a refusal of that request); In re Carrington, No. 07-12-00220-CV, 2012 Tex. App. LEXIS 8197, at *6 (Tex. App.—Amarillo Sept. 27, 2012, orig. proceeding). Here, Relator has merely averred that he mailed his application to the clerk. He has not established that the application was ever made known to the trial judge or that a demand for performance has ever been made.
Consequently, Relator's request for mandamus relief is denied.
Per Curiam Do not publish.