in Re: Benito Lopez ( 2011 )

NUMBER 13-11-00110-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE: BENITO LOPEZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Benavides1
By petition for writ of mandamus filed on February 25, 2011, relator, Benito
Lopez, pro se, seeks an order requiring the trial court2 to comply with the Interstate
Agreement on Detainers Act (the ―Act‖) and dismiss relator‘s indictment and detainer.
See TEX. CODE CRIM. PROC. ANN. art. 51.14 (Vernon 2006). Relator alleges that he is
presently incarcerated in federal prison in South Carolina and has an outstanding
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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).
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The respondent in this original proceeding is the Honorable Angelica E. Hernandez, Presiding
Judge of the 105th District Court of Kleberg County, Texas.
detainer from Kleberg County, Texas. Relator specifically complains that he has been
denied due process of the law because the District Attorney of Kleberg County has
failed to comply with the Act, and this failure has denied relator the right to a speedy
trial. We deny the petition for writ of mandamus.
I. STANDARD OF REVIEW
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 either of these requirements, then the petition for writ
of mandamus should be denied. See id. As to the latter requirement, the court of
criminal appeals has stated that it is satisfied ―if the relator can show he has ‗a clear
right to the relief sought‘—that is to say, ‗when the facts and circumstances dictate but
one rational decision‘ under unequivocal, well-settled (i.e., from extant statutory,
constitutional, or case law sources), and clearly controlling legal principles.‖ 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
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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).
II. BACKGROUND
Relator asserts that, on June 18, 2009, the Kleberg County Sheriff‘s Office
placed a detainer on relator by mail with the Inmate Systems Records Office at the
Federal Correctional Institution in Fort Worth, Texas, where relator was serving a
federal prison sentence. Relator contends that he filed an ―inmate request to staff‖ at
this prison regarding a motion for a speedy trial in Kleberg County regarding the
detainer; however, the staff at the prison did not respond to relator‘s request. In his
appendix, relator has included a copy of the ―inmate request to staff,‖ which is directed
to ―Bernard P. Waller/Inmate Systems Manager‖ and is dated July 13, 2009. This form
includes the hand-written notation that stated, ―I‘d like to talk to you about my detainer
out of Kleberg County to see if we can take care of it before the BOP moves me farther
away.‖ The document further provides that, ―today 8-21-9 I asked Mr. Waller if [he] had
filed with Kleberg Co. my speedy trial motion and he had not.‖ Relator alleges that he
mailed a motion pursuant to the Act on March 16, 2010 to the Kleberg County District
Court and to the Kleberg County District Attorney, and that these entities received the
motion on March 23, 2010. After waiting 180 days without a response, relator filed a
motion to dismiss for failure to comply with the Act. According to relator, the Kleberg
County authorities still have not responded to his request or motion.
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III. INTERSTATE AGREEMENT ON DETAINERS ACT
The disposition of an interstate detainer is governed by the Act as codified in the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 51. The Act‘s
purpose is to ―encourage the expeditious and orderly disposition‖ of ―charges
outstanding against a prisoner, detainers based on untried indictments, informations, or
complaints, and difficulties in securing speedy trial of persons already incarcerated in
other jurisdictions‖ based on the rationale that such charges and detainers ―produce
uncertainties which obstruct programs of prisoner treatment and rehabilitation.‖ See id.
art. 51.14, art. I. The Act outlines the cooperative procedure between the jurisdictions
to be used when one jurisdiction is seeking to try a prisoner who is currently imprisoned
in another jurisdiction. State v. Votta, 299 S.W.3d 130, 134-35 (Tex. Crim. App. 2009).
When a state with an untried indictment, information, or complaint against a prisoner
files a detainer with the institution in the state that is holding the prisoner, the prison is
required to promptly inform the prisoner that a detainer has been filed against him and
that he has the right to request final disposition of the charges. TEX. CODE CRIM. PROC.
ANN. art. 51.14 art. III(c). The prisoner may then request final disposition by giving
written notice to the warden, who forwards the request, along with a certificate
containing information about the prisoner‘s current confinement, to the prosecuting
officer and the appropriate court of the prosecuting officer‘s jurisdiction. See Votta, 299
S.W.3d at 134-35. Under article III(a) of the Act, the prisoner must then be brought to
trial in the receiving state within 180 days from the date on which the prosecuting officer
and the appropriate court receive this written request for a final disposition, unless a
continuance is granted under the Act. See TEX. CODE CRIM. PROC. ANN. art. 51.14, art.
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III(a); Votta, 299 S.W.3d at 134-35. If the prisoner is not brought to trial within 180 days,
the trial court must dismiss the indictment with prejudice. TEX. CODE CRIM. PROC. ANN.
art. 51.14, art. III(d); Votta, 299 S.W.3d at 134-35.
Article III of the Act specifies the procedure to be followed when a prisoner seeks a
final disposition of an outstanding indictment, information, or complaint. See TEX. CODE
CRIM. PROC. ANN. art. 51.14, art. III. In summary, the Act provides that:
1. The person seeking the disposition must cause to be delivered to the
prosecuting officer and the appropriate court of the prosecuting officer‘s
jurisdiction written notice of the place of his imprisonment and his request
for a final disposition.
2. The request must be accompanied by a certificate of the appropriate
official having custody of the prisoner, stating the term of commitment
under which the prisoner is being held, the time already served, the time
remaining to be served on the sentence, the amount of good time earned,
the time of parole eligibility of the prisoner, and any decision of the state
parole agency relating to the prisoner.
3. The prisoner must send the written notice and request for final disposition
to the official having custody of him, who must promptly forward it together
with the certification to the appropriate prosecuting official and court by
registered or certified mail, return receipt requested.
See id. art. III(a), (b).
IV. ANALYSIS
In the instant case, the appendix accompanying the petition for writ of mandamus
includes copies of: (1) a letter dated June 18, 2009, from the Kleberg County Sheriff‘s
Office requesting the placement of a detainer on relator for ―POSSESSION OF
COCAINE W/ INTENT TO DELIVER – FAILURE TO APPEAR;‖ (2) a form dated July 8,
2009 entitled ―IAD – Notice of Untried Indictment‖ which informed Lopez about the
detainer and the appropriate procedures to be followed under the Act; (3) the
aforementioned ―inmate request to staff;‖ (4) a ―Motion to Comply with Interstate
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Agreement on Detainers . . . or, In the Alternative to Dismiss Charges;‖ (5) return
receipts indicating service of documents on the District Clerk and District Attorney of
Kleberg County on March 23, 2010; and (5) a ―Motion to Dismiss Charges for Failure to
Comply with the [Act].‖
We cannot determine from the record before this Court whether the prescribed
and required procedure was followed in transmitting relator‘s documents to the court
and whether the trial court received all of the documentation required by the Act. See
id. art. 51.14, art. III(a), (b). Consequently, we cannot conclude that the trial court has
abused its discretion in failing to rule on relator‘s motion. See id.; see also In re Ivey,
No. 03-10-00693-CV, 2010 Tex. App. LEXIS 9198, at *2 (Tex. App.–Austin Nov. 17,
2010, orig. proceeding) (mem. op.) (―An inmate is not entitled to mandamus relief
dismissing the charges against him under the [Act] if he fails to demonstrate compliance
with the [Act]‘s requirements‖); In re Cantu, No. 04-09-00527-CR, 2009 Tex. App.
LEXIS 7965, at *2 (Tex. App.–San Antonio Oct. 14, 2009, orig. proceeding) (mem. op.,
not designated for publication) (relator must show compliance with provisions of statute
to obtain mandamus relief); In re Montgomery, No. 12-09-00115-CR, 2009 Tex. App.
LEXIS 3092, at *3 (Tex. App.–Tyler May 6, 2009, orig. proceeding) (mem. op., not
designated for publication) (same); In re Hembree, No. 07-05-00320-CV, 2005 Tex.
App. LEXIS 7826, at *2 n.2 (Tex. App.–Amarillo Sept. 23, 2005, orig. proceeding) (mem.
op.) (same); Burton v. State, 805 S.W.2d 564, 575 (Tex. App.–Dallas 1991, pet. ref‘d)
(holding that 180-day timeline under the Act did not begin where court was not notified
of request under the Act).
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V. CONCLUSION
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).
__________________________
GINA BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed this the
9th day of March, 2011.
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