in Re Phillip Leo Torres, Jr., Relator ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00297-CR
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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
August 18, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Relator, Phillip Leo Torres, Jr., proceeding pro se and in forma pauperis,
seeks a writ of mandamus to compel the Honorable Stuart Messer to rule on his writ of
habeas corpus filed pursuant to article 11.072 of the Texas Code of Criminal
Procedure.1 For the reasons explained herein, we deny Relator’s petition.
1
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
In June 2012, Relator was placed on deferred adjudication community
supervision for a term of eight years for an aggravated assault committed against Dillon
Carston Guy. Several months later, the State moved to proceed to an adjudication of
guilt based on the alleged commission of a new offense. At a hearing held December 5,
2012, the trial court found the State’s allegation to be true, adjudicated Relator guilty of
the original offense, and sentenced him to twenty years confinement. After the Texas
Court of Criminal Appeals granted Relator an out-of-time appeal,2 this court affirmed the
trial court’s judgment.3
In March 2016, Relator sought and was denied mandamus relief regarding an
application for writ of habeas corpus pending in the trial court. Relief was denied for
failure to comply with applicable rules of procedure. In re Torres, No. 07-16-00112-CR,
2016 Tex. App. LEXIS 2868 (Tex. App.—Amarillo March 18, 2016, orig. proceeding)
(mem. op., not designated for publication). Now pending is a subsequent request for
mandamus relief by which Relator asserts that the trial court has still failed to rule on his
pending application.
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.,
2
Ex parte Torres, No. WR-79,218-01, 2016 Tex. Crim. App. Unpub. 809 (Tex. Crim. App. July 24,
2013).
3
Torres v. State, No. 07-13-00332-CR, 2014 Tex. App. LEXIS 13404 (Tex. App.—Amarillo Dec.
15, 2014, pet. ref’d) (mem. op., not designated for publication).
2
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
In his current petition, Relator avers that he mailed the clerk on or about March
22, 2016, and that, in return, he received notice that his application for writ of habeas
corpus was filed on March 30, 2016. Relator does not explain whether the clerk of the
court assigned the case a “file number ancillary to that of the judgment of conviction.”
See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 4(b) (West 2015). Nor does he allege
that he served a copy of the application on the attorney representing the state. Id. at §
5(a) (providing that “[i]mmediately on filing an application, the applicant shall serve a
copy of the application on the attorney representing the state, by either certified mail,
return receipt requested, or personal service”). Also lacking is any explanation of
whether the state filed a timely answer. Id. at § 5(c) (providing that “the state may not
file an answer after the 30th day after the date of service,” except for good cause
shown. Without proof that the application was served on the attorney representing the
state, we have no way of determining when the trial court would be required to rule. Id.
at § 6(a) (providing that “[n]ot later than the 60th day after the day on which the state’s
3
answer is filed, the trial court shall enter a written order granting or denying the relief
sought in the application”). Finally, Relator has totally failed to make any averment as
to how or when he called the failure to enter a ruling to the attention of the trial court.
As we stated in our opinion denying Relator’s prior petition for mandamus relief,
“[a]lthough 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.” In re Torres, No. 07-16-
00112-CR, 2016 Tex. App. LEXIS 2868, at *3.
CONCLUSION
Relator’s request for mandamus relief is denied.
Per Curiam
Do not publish.
4