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Date: 03-02-2021
Case Style:
In Re: Lisa Davis
Case Number: 12-20-00255-CR
Judge: JAMES T. WORTHEN
Court: IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
Plaintiff's Attorney: Mr. Michael J. West
Defendant's Attorney:
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Description:
Tyler, TX - Criminal defense attorney represented Lisa Davis with a possession of a controlled substance charge.
Relator was charged by indictment with state jail felony possession of a controlled
substance. Pursuant to a plea bargain agreement with the State, she pleaded “guilty,” and the
trial court deferred a finding of guilt and placed her on community supervision for a term of two
years. Subsequently, the State filed a motion to adjudicate Relator’s guilt. Relator’s new counsel
filed an application for writ of habeas corpus under code of criminal procedure Article 11.072 in
the trial court, asserting that her prior counsel was ineffective because (1) the evidence was
insufficient to support a conviction and (2) counsel failed to move to suppress evidence in the
case. Respondent denied the application. On November 6, 2020, Relator filed a notice of appeal
to challenge this denial.2 Relator then filed this original proceeding on November 12.
1 The Respondent is the Honorable Kerry L. Russell, Judge of the 7th Judicial District Court in Smith
County, Texas. The Real Party in Interest is the State of Texas.
2 That appeal remains pending with this Court.
2
ISSUANCE OF WRIT
In Relator’s first issue, she contends that Respondent abused his discretion by failing to
issue the writ after she filed her application. Article 11.072 “establishes the procedures for an
application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant
seeks relief from an order or a judgment of conviction ordering community supervision.” TEX.
CODE CRIM. PROC. ANN. art. 11.072 § 1 (West 2005). An application filed under Article 11.072
“must be filed with the clerk of the court in which community supervision was imposed.” Id.
§ 2(a) (West 2005). A writ of habeas corpus “issues by operation of law” when the application is
filed. Id. § 4(a) (West 2005).
When Relator filed her application for writ of habeas corpus in the trial court, the writ
issued by operation of law. See id. Respondent acknowledged the writ’s issuance by denying
Relator’s writ application. See Ex parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App.
2008) (writ effectively issued where trial judge did not formally issue writ but ruled on the
merits). Because the writ issued by operation of law, Relator’s request to direct Respondent to
issue the writ is moot, and she is not entitled to mandamus relief as to this issue. See id.; see also
In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (there is nothing to mandamus when
relief sought is moot).
AVAILABILITY OF MANDAMUS
In Relator’s second issue, she argues that Respondent abused his discretion by looking
outside the four corners of her writ application before denying it as frivolous. In Relator’s third
issue, she argues that Respondent abused his discretion by entering findings of fact and
conclusions of law despite the State’s failure to file an answer. In Relator’s fourth issue, she
argues that appeal is an inadequate remedy because (1) she will be imprisoned if the trial court
grants the State’s motion to adjudicate her guilt and revokes her community supervision, and (2)
if she can show that ineffective assistance of counsel rendered her plea involuntary, the State’s
motion to adjudicate “evaporates.”
In a criminal case, a relator is entitled to mandamus relief only if she establishes that (1)
she has no adequate remedy at law, and (2) the act she seeks to compel is ministerial. In re ex
rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013); Bowen v. Carnes, 343 S.W.3d 805,
810 (Tex. Crim. App. 2011). If a trial judge denies an Article 11.072 application in whole or in
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part, “the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate
Procedure.” TEX. CODE CRIM. PROC. ANN. art. 11.072 § 8 (West 2005). Thus, we conclude that
Relator has an adequate remedy at law. See id. And we cannot say that the remedy by appeal is
so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be
inadequate. See Weeks, 391 S.W.3d at 122-23. Relator has already filed an appeal with this
Court and that appeal is accelerated, with her brief currently due on February 22, 2021. See TEX.
R. APP. P. 31.1 (prescribing accelerated timetable for appeals in habeas corpus proceedings), 31.2
(requiring appeal in habeas corpus proceeding to be “heard at the earliest practicable time”).
Therefore, because the law specifically affords Relator an appellate remedy to challenge
Respondent’s denial of her habeas application, she fails to satisfy the mandamus requirement of
having no adequate remedy at law. See Weeks, 391 S.W.3d at 122; Bowen 343 S.W.3d at 810.
Outcome: Having determined that Relator failed to establish her entitlement to mandamus relief, we deny the petition for writ of mandamus.
Plaintiff's Experts:
Defendant's Experts:
Comments: