Commission for Lawyer Discipline v. Stephen T. Leas ( 2012 )

NUMBER 13-12-00032-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE LOUIS A. OLIVAREZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion Per Curiam1
Relator, Louis A. Olivarez, pro se, filed a petition for writ of mandamus in the
above cause on January 20, 2012, asking this Court to direct the respondent, the
Honorable W. C. Kirkendall, Presiding Judge of the 2nd 25th District Court of Lavaca
County, Texas, to hear and grant relator’s motion to obtain copies of the trial transcripts
and all court records pertaining to relator’s criminal conviction in trial court cause
number 02-01-8553CR. According to the petition, relator has exhausted his state court
remedies and is seeking these records for the purposes of filing a motion for new trial
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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).
based on newly discovered evidence. See TEX. CODE CRIM. PROC. ANN. art. 40.001
(West ) (―A new trial shall be granted an accused where material evidence favorable to
the accused has been discovered since trial.‖). We deny the petition for writ of
mandamus for the reasons stated herein.
To be entitled to mandamus relief, relator must establish both that he has no
adequate remedy at law to redress his alleged harm, and that what he seeks to compel
is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young
v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007). If relator fails to meet both of these requirements, then the petition for writ
of mandamus should be denied. See id. It is relator’s burden to properly request and
show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex.
App.–Houston [1st Dist.] 1992, orig. proceeding) (―Even a pro se applicant for a writ of
mandamus must show himself entitled to the extraordinary relief he seeks.‖).
In addition to other requirements, relator must include a statement of facts
supported by citations to ―competent evidence included in the appendix or record,‖ and
must also provide ―a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the appendix or record.” See generally TEX.
R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record
sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the
required contents for the appendix); R. 52.7(a) (specifying the required contents for the
record).
In this case, the petition for writ of mandamus fails to comply with the Texas
Rules of Appellate Procedure. See generally id. R. 52.3. The petition is defective
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because, inter alia, it does not follow the required format for such petitions and it does
not include the required certification or certified or sworn copies of "every document that
is material to relator’s claim for relief." See id. R. 52.3(j), 52.7(a).
Relator cites numerous authorities which stand for the proposition that an
indigent criminal defendant is entitled to a free copy of the trial record for the first appeal
from his conviction. See, e.g., Griffin v. Illinois, 351 U.S. 12, 19-20 (1956). However,
an indigent criminal defendant is not entitled, either as a matter of equal protection or of
due process, to a free record of prior proceedings for use in pursuing post-conviction
relief. United States v. MacCollom, 426 U.S. 317, 322-23 (1976); In re Trevino, 79
S.W.3d 794, 796 (Tex. App.—Corpus Christi 2002, orig. proceeding); Escobar v. State,
880 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993, per curiam order). To
obtain a free record for use in a post-conviction proceeding, a relator must show that the
proceeding is not frivolous and there is a specific need for the trial records that are
sought. See In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio 1998, orig.
proceeding); Eubanks v. Mullin, 909 S.W.2d 574, 576–77 (Tex. App.—Fort Worth 1995,
orig. proceeding); Escobar, 880 S.W.2d at 783. Relator has not satisfied these
requirements.
Finally, we note that relator asserts that he is innocent, which suggests the relief
he seeks might properly be addressed through habeas corpus. This Court has no
jurisdiction over matters related to post-conviction relief from a final felony conviction.
TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3 (West 2008); Ater v. Eighth Court of Appeals,
802 S.W.2d 241, 243 (Tex. 1991); Board of Pardons & Paroles ex rel. Keene v. Court of
Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53
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S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) Accordingly, if
relator is seeking post-conviction habeas relief from a final felony conviction, we are
without jurisdiction to issue mandamus.
The Court, having examined and fully considered the petition for writ of
mandamus and the applicable law, is of the opinion that relator has not met his burden
to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly,
relator’s petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 23rd
day of January, 2012.
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