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 2005-07

in Re: Robert Buentello ( 2005 )


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              NUMBER 13-05-363-CR

     

                             COURT OF APPEALS

     

                   THIRTEENTH DISTRICT OF TEXAS

     

                      CORPUS CHRISTI - EDINBURG

    ___________________________________________________________________

     

          IN RE ROBERT BUENTELLO

    __________________________________________________________________

     

                          On Petition for Writ of Mandamus ___________________________________________________________________

     

                         MEMORANDUM OPINION

     

           Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                                 Per Curiam Memorandum Opinion

     

     

    Relator, Robert Buentello, files this petition for writ of mandamus requesting that this Court direct respondent, the Honorable Jack E. Hunter, presiding judge of the 94th District Court of Nueces County, to loan relator a free copy of the trial transcript and court clerk records in order to assist him in filing a petition for habeas corpus.[1]  Relator is currently incarcerated and claims that he has requested the records from the court clerk but is unable to pay for them. 

    We deny his petition for the following reasons.  Although an indigent criminal defendant has a constitutional right to a free appellate record in a first appeal of right, this appeal has already occurred.[2]   See Scott v. State, 80 S.W.3d 184, 190 (Tex. App.BWaco 2002, pet. ref=d) (citing Griffin v. Illinois, 351 U.S. 12, 18-19 (1956); Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim. App. 1986)); see also Tex. R. App. P. 20.2.  An indigent criminal defendant is not entitled, either as a matter of due process or equal protection, to a free transcription of prior proceedings for use in pursuing post-conviction habeas relief.  Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.BHouston [1st Dist.] 1993, no pet.) (citing United States v. MacCollom, 426 U.S. 317, 322‑23, 328 (1976)).  Furthermore, this Court has previously noted in dicta that Aan indigent criminal defendant is not entitled to a free clerk's record or reporter's record once he has exhausted his state appeals, absent some compelling recognized reason.@  In re Trevino, 79 S.W.3d 794, 796 (Tex. App.BCorpus Christi 2002) (orig. proceeding).     Relator has provided no reason other than his indigent status to support his request for the records.  Accordingly, we deny his petition.

    PER CURIAM

     

     

    Do not publish.  Tex. R. App. P. 47.2(b).

     

    Memorandum Opinion delivered and filed

    this the 28th day of July, 2005.

     


    [1]Relator was convicted sexual assault and indecency with a child.  He appealed his conviction to this Court, and we affirmed.  See Buentello v.State, No. 13-03-225-CR, 2004 Tex. App. LEXIS 7807, at *1 (Tex. App.BCorpus Christi Aug. 27, 2004) (not designated for publication).   

    [2]As relator's case was appealed to this Court, the original record is in the possession of this Court as required by the Texas Government Code. Tex. Gov=t Code Ann. ' 51.204(a)(1) (Vernon Supp. 2004-05). Relator, his agent, or anyone else would be entitled to view the record at this Court.  In re Strickhausen, 994 S.W.2d 936, 937 (Tex. App.BHouston [1st Dist.] 1999) (orig. proceeding). Relator also retains the right to obtain a copy of the record by making appropriate arrangements, including payment for the cost of copying the records.