in Re: Alejandro Loyo Longoria, Jr. ( 2007 )

NUMBERS 13-07-709-CR

13-07-710-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE: ALEJANDRO LOYO LONGORIA, JR

____________________________________________________________

On Petition for Writ of Mandamus ____________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Benavides Per Curiam Memorandum Opinion ⁽¹⁾

Relator, Alejandro Loyo Longoria, Jr., filed petitions for writ of mandamus in the above causes ⁽²⁾ on November 26, 2007, requesting this Court to compel the respondent, the Honorable Noe Gonzalez, presiding judge of the 370th District Court of Hidalgo County, Texas, to rule on his motion for a free clerk's record and reporter's record of trial proceedings in trial court cause number CR-2617-03-G and CR-2608-03-G for use in a contemplated habeas proceeding. We deny the petitions.

Relators' petitions do not meet the requirements of Rule 52.3 of the Rules of Appellate Procedure. See Tex. R. App. P. 52.3. Even if they did, relator has not shown himself entitled to the relief sought. Relator has not demonstrated that respondent expressly refused to rule on relator's motion or that an unreasonable amount of time has passed since the motion was filed. See In re Miller, No. 07-07-0144-CV, 2007 Tex. App. LEXIS 3764, at *4 (Tex. App.--Amarillo May 16, 2007, orig. proceeding). Furthermore, "an 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.-Corpus Christi 2002, orig. proceeding). To obtain a free record for use in a habeas proceeding, the relator must show that the habeas action is not frivolous by making a specific showing of the issues to be raised in the habeas proceeding and a specific need for the transcript to demonstrate the right to habeas relief, including demonstrating his inability to pay for a transcript. See Eubanks v. Mullin, 909 S.W.2d 574, 576-77 (Tex. App.-Fort Worth 1995, orig. proceeding). Accordingly, the petitions for writ of mandamus are DENIED. See Tex. R. App. P. 52.8(a).   

PER CURIAM

Do not publish.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

Memorandum Opinion delivered and

filed this 4th day of December, 2007.

1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).

2. We have assigned separate cause numbers to these proceedings because the motion filed by relator in the trial court related to two separate trial court cause numbers. However, we now consolidate these proceedings for disposition.