in Re Alex J. Hernandez, Relator ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-14-00257-CV
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IN RE ALEX J. HERNANDEZ, RELATOR
Original Proceeding Arising from the 237th District Court
Lubbock County, Texas
Honorable Les Hatch, Presiding
September 16, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Alex J. Hernandez, an inmate proceeding pro se and in forma pauperis seeks a
writ of mandamus to compel the Honorable Les Hatch to respond to his Motion Nunc
Pro Tunc by which he seeks to have cumulative sentences in cause numbers 98-
427711, 98-427742 and 98-428109 corrected.1 For the reasons expressed herein, we
deny Relator’s request.
1
Relator has complied with the requirements of chapter 14 of the Texas Civil Practice and
Remedies Code.
BACKGROUND
Relator’s petition for writ of mandamus is accompanied by a copy of his Motion
Nunc Pro Tunc bearing a file stamp from the Lubbock County District Clerk of February
3, 2014. In that motion, Relator argues he is being illegally confined by the Texas
Department of Criminal Justice. According to his motion, he was sentenced to twenty
years for burglary of a habitation in cause number 98-427711, seven years for
retaliation in cause number 98-427742 and ten years for aggravated kidnapping in
cause number 98-428109. He asserts the twenty-year sentence was “cumulated
concurrent” with the other two sentences commencing on December 8, 1998.
According to Relator, the judgments in the latter two cause numbers reflect the
sentences are to “run concurrent” with the twenty-year sentence. Appellant indicates he
has made parole on the twenty-year sentence and is now illegally confined on the seven
and ten-year sentences due to TDCJ cumulating the sentences.
According to his motion, Relator has made several attempts to correct the error
on his sentences to no avail. He now requests that this Court review the underlying
judgments and grant him relief. Relying on Odlozelik v. State, 837 S.W.2d 825 (Tex.
App.—Tyler 1992, no pet.), he contends the judgments are inconsistent and constitute
an improper stacking of sentences in violation of his constitutional rights.
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)). AMandamus issues only to
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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).
Initially, we address Relator’s failure to comply with most of the mandatory
requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. See generally
TEX. R. APP. P. 52.3(a)-(k). Although Relator has included a copy of the motion pending
in the trial court, he has not included copies of the three judgments he asserts will show
his sentences should have run concurrently. Without those judgments it would be
impossible for this Court to determine any appropriate relief.
A party proceeding pro se is not exempt from complying with rules of procedure.
See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Relator has
not provided this Court with a sufficient record to determine whether he is entitled to
mandamus relief. See Walker, 827 S.W.2d at 837. See also In re Bates, 65 S.W.3d
133, 135 (Tex. App.—Amarillo 2001, orig. proceeding).
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CONCLUSION
Relator’s petition for writ of mandamus against the Honorable Les Hatch is
denied.2
Patrick A. Pirtle
Justice
2
A writ of habeas corpus filed pursuant to article 11.07 of the Texas Code of Criminal Procedure
is a more appropriate avenue for review of Relator’s sentences. See Ex parte Salinas, 184 S.W.3d 240
(Tex. Crim. App. 2006).
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