in Re Josue David Bernal ( 2006 )

Opinion issued June9, 2006

  In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-06-00443-CR

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IN RE JOSUE DAVID BERNAL, Relator

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Original Proceeding on Petition for Writ of Mandamus  

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MEMORANDUM OPINION

           Relator, Josue David Bernal, requests that this Court compel respondent to: rule on his pro se motion that requesting the trial court loan him the record in case number 709911. Relator was convicted of the offense of murder on November 19, 1996 in the 178th District Court of Harris County, Texas. He was sentenced to confinement for life. We deny the petition for writ of mandamus.

          Relator’s petition does not meet the requirements of Rule 52.3 of the Rules of Appellate Procedure. See Tex. R. App. P. 52.3. Even if it did, for the relator to be entitled to the extraordinary remedy of mandamus, he must establish: (1) that he has no other adequate remedy at law available; and (2) that the act sought to be compelled is a clear and fixed duty imposed by law that is purely ministerial, as opposed to discretionary or judicial in nature. Eubanks v. Mullin, 909 S.W.2d 574, 576 (Tex. App.—Fort Worth 1995, orig. proceeding). The act that relator seeks to compel is not one that is clearly required by law. An indigent criminal defendant is not entitled to a free transcription of prior proceedings for use in pursuing post-conviction habeas corpus relief. Id. at 576-77; Escobar v. State, 880 S.W.2d 782, 783-84 (Tex. App.—Houston [1st Dist.] 1993, no pet.).

          The petition for writ of mandamus is denied.

          It is so ORDERED.  

PER CURIAM

Panel consists of Chief Justice Radack, and Justices Taft and Nuchia.

Do not publish.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