in Re Andre Renor Evans ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00110-CR
IN RE ANDRE RENOR EVANS
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
In this original proceeding, Relator Andre Renor Evans, proceeding pro se, petitioned for
a writ of mandamus compelling the Honorable Ralph Strother, judge of the 19th Judicial District
Court, McLennan County, Texas (Respondent), to comply with this Court’s mandate requiring the
trial court to provide Evans with a new punishment hearing. 1 Evans was convicted on three counts
of trafficking and sentenced to life in prison on each offense. On appeal, the third trafficking
conviction (Count III), because of insufficient evidence, was modified to a conviction for
compelling prostitution and remanded to the trial court for a punishment proceeding. Apparently
unbeknown to Evans, the State decided to forego the new punishment hearing and filed a waiver
of Count III, which was approved by the trial court. Thus, Count III was effectively dismissed.
Because we find this dispute is now moot, we dismiss Evans’ petition for writ of mandamus.
I. Discussion
To be entitled to mandamus relief in a criminal case, the relator must show (1) that he has
no adequate remedy at law and (2) that the action he seeks to compel is ministerial, not one
involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of
Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). These
1
This Court has jurisdiction to issue a writ of mandamus against a “judge of a district, statutory county, statutory
probate county, or county court in the court of appeals district.” TEX. GOV’T CODE ANN. § 22.221(b) (Supp.). Section
22.201(g) of the Texas Government Code states, “The Sixth Court of Appeals District is composed of the counties of
Bowie, Camp, Cass, Delta, Fannin, Franklin, Gregg, Harrison, Hopkins, Hunt, Lamar, Marion, Morris, Panola, Red
River, Rusk, Titus, Upshur, and Wood.” TEX. GOV’T CODE ANN. § 22.201(g) (Supp.).
On April 18, 2016, Evans’ direct appeal was transferred from McClennan County to this Court pursuant to
the Texas Supreme Court’s docket equalization order. Because Evans’ petition for writ of mandamus implicates our
mandate in his direct appeal, this Court has authority to address the issues raised in his petition. “Each court of appeals
or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction
of the court.” TEX. GOV’T CODE ANN. § 22.221(a) (Supp.).
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two requirements for obtaining mandamus relief “are established in a case, where upon receipt of
this Court’s mandate, a trial judge fails to follow the explicit directions of this Court.” Berry v.
Hughes, 710 S.W.2d 600, 601 (Tex. Crim. App. 1986) (orig. proceeding) (per curiam). “The
inadequate remedy at law requirement is met because a defendant has no adequate method for
appealing from a trial court’s failure to follow the mandate of this Court.” Id. The ministerial
duty requirement is met because our mandate imposes a ministerial, non-discretionary duty on the
trial court to act, that is, enforce our judgment. See Tex. Health & Human Servs. Comm’n v.
El Paso Cty. Hosp. Dist., 351 S.W.3d 460, 472 (Tex. App.—Austin 2011), aff’d, 400 S.W.3d 72
(Tex. 2013); In re Perry, No. 06-09-00226-CR, 2010 WL 58966, at *1 (Tex. App.—Texarkana
Jan. 7, 2010, orig. proceeding) (mem. op., not designated for publication).
After a jury trial, Evans was convicted in trial court cause number 2015-1341-C1 of, among
other offenses, three counts of trafficking. After pleading true to two enhancement paragraphs,
Evans was sentenced to life in prison on each offense. On appeal, we found the evidence was
sufficient to sustain two of the trafficking convictions. We concluded that the evidence was
insufficient to support Count III, but we determined that the judgment should be modified to reflect
a conviction for compelling prostitution, and we remanded the matter to the trial court to conduct
a punishment proceeding. See Evans v. State, No. 06-16-00064-CR, 2017 WL 1089806 (Tex.
App.—Texarkana Mar. 22, 2017, pet. ref’d) (mem. op., not designated for publication).
Evans filed his petition for writ of mandamus, maintaining that the trial court failed to
conduct the punishment proceeding as required by our mandate and asking this Court to order the
trial court to do so. We asked the Respondent to file a response to Evans’ petition and received a
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response that stated, “As the Court can see, the State, with this court’s approval, has effectively
dismissed Count III.[2] Accordingly, the matter of punishment as to [Count III] is moot, and there
is no basis for relief presented in the petition for mandamus.” (Emphasis added). Respondent
continued, “For the Court’s reference, I have provided copies of the aforementioned State’s Waiver
of Count III and the Order on State’s Waiver of Count III, contained in the District Court’s record
in this case.”
The State may dismiss a criminal action at any time, subject to approval by the trial court.
TEX. CODE CRIM. PROC. ANN. art. 32.02; Smith v. State, 70 S.W.3d 848, 850–51 (Tex. Crim. App.
2002). That said, the State may not dismiss a case already reduced to a final judgment. Satterwhite
v. State, 36 S.W.3d 145, 147–49 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). “A conviction
is not final until sentencing occurs.” Glaze v. State, 675 S.W.2d 768, 769 (Tex. Crim. App. 1984).
Here, after Count III in the original judgment had been modified and sent back to the trial
court for a new punishment proceeding, the State filed its waiver of Count III before the
punishment hearing was conducted. The trial court then approved the State’s request to waive
Count III. Thus, that charge against Evans was waived, and no sentence was imposed. Nor was
Count III ever reduced to a final judgment. For these reasons, the State was entitled to waive
Count III at that juncture in the proceedings.
As a result, this dispute is now moot. If “the ground that the relief sought had become
moot and, therefore, ‘there is nothing to mandamus, ergo mandamus does not lie,’” dismissal of a
2
The State filed its “Waiver of Count III” on November 1, 2017, and the trial court entered its “Order on State’s Waiver
of Count III” approving the waiver on the same day.
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petition to mandamus is proper. In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (orig.
proceeding) (quoting State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984)
(orig. proceeding)).
II. Conclusion
For the reasons stated above, we dismiss Evans’ petition for mandamus because the matter
is now moot.
Scott E. Stevens
Justice
Date Submitted: July 16, 2019
Date Decided: July 17, 2019
Publish
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