in Re Delfrick Lamane Benton ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-327 CV ____________________

IN RE DELFRICK LAMANE BENTON

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Original Proceeding

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MEMORANDUM OPINION

The relator, Delfrick Lamane Benton, seeks an order that he be provided a free copy of the record of his trial. Benton appealed his convictions out of the 163rd Judicial District Court of Orange County, Texas, in Cause Nos. B-050233-R and B-050236-R. This Court dismissed the appeals for lack of jurisdiction because notice of appeal was filed too late to perfect them. Benton v. State, Nos. 09-06-131 CR and 09-06-132 CR, 2006 WL 1360516 (Tex. App.- Beaumont May 17, 2006, pet. ref'd). No record was filed in either appeal. Benton requested that a record be prepared for the purpose of preparing an application for writ of habeas corpus.

An indigent defendant is not entitled to a free record once he has exhausted his appeal, absent some compelling, recognized reason. See Eubanks v. Mullin, 909 S.W.2d 574, 576-77 (Tex. App.- Fort Worth 1995, orig. proceeding); Escobar v. State, 880 S.W.2d 782, 784 (Tex. App.- Houston [1st Dist.] 1993, order, no pet.). Absent a showing of exceptional circumstances, the trial court does not have a mandatory duty to order the preparation of a record for use in preparing a petition for writ of habeas corpus. Eubanks, 909 S.W.2d at 576-77; Escobar, 880 S.W.2d at 784; compare Tex. Code Crim. Proc. Ann. art. 11.07, § 3(d) (Vernon 2005) (procedure when court finds controverted facts material to legality of confinement).

The relator has not shown that he is entitled to the relief sought. Accordingly, the petition for writ of mandamus is denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered August 24, 2006

Before Gaultney, Kreger, and Horton, JJ.