Opinion
No. 06-08-00103-CV
Date Submitted: September 23, 2008.
Date Decided: September 24, 2008.
Original Mandamus Proceeding.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Upset that the Texas Court of Criminal Appeals has already denied his previous efforts to obtain relief, Gary Wayne Lowe has filed a petition for writ of mandamus which asks us to direct the trial court to delete an order that "stacked" his 1988 sentences for murder and aggravated sexual assault. We conclude that Lowe has an adequate remedy available and that res judicata precludes our ability to grant such relief. Accordingly, we deny Lowe's petition.
"The function of the writ of mandamus is to compel action by those who by virtue of their official or quasi-official positions are charged with a positive duty to act." In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex.App.-Tyler 2006, orig. proceeding) (referencing Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70 (1953)). "It is not a writ of right, and its issuance is within the sound discretion of the court, a discretion to be exercised by the application of fixed principles." Id. (citing Westerman v. Mims, 111 Tex. 29, 227 S.W.2d 178, 181 (1921)). We may grant a petition for writ of mandamus when the applicant shows "(1) that the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law." Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex.Crim.App. 2006) (orig. proceeding) (citing Winters v. Presiding Judge of Criminal Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex.Crim.App. 2003)); see also D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862, 866 (Tex.App.-Houston [14th Dist.] 2006, orig. proceeding).
Two problems exist with Lowe's present petition for writ of mandamus.
First, Lowe has an available remedy through which to seek relief: He may file an application for writ of habeas corpus with the trial court, made returnable to the Texas Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008). According to our independent research, Lowe has previously filed several post-conviction applications for extraordinary writs with the Texas Court of Criminal Appeals. (The Texas Court of Criminal Appeals' website shows he has filed at least seven such previous petitions, and these include applications for writs of habeas corpus, prohibition, and mandamus.) The availability of an alternative avenue for relief precludes our ability to consider the merits of Lowe's petition for writ of mandamus.
Second, Lowe concedes in his current petition for writ of mandamus that he has previously filed an application for writ of habeas corpus with the Texas Court of Criminal Appeals in which he indirectly contested the propriety of the sentence stacking order via a claim of ineffective assistance of counsel. This state's highest criminal court denied relief on that claim without written order. We believe that challenging the propriety of the stacking order via an ineffective assistance claim is no different than challenging the propriety of the stacking order itself — because if the stacking order were improper, then ineffective assistance would necessarily have been shown and, we have no doubt, the Texas Court of Criminal Appeals would have granted relief via habeas. Therefore, the court's decision on this issue is now the law of the case, which we may not disturb in this type of collateral attack. Cf. Adams v. State, 222 S.W.3d 37, 56 (Tex.App.-Austin 2005, pet. ref'd) (appellant raised same issue in civil appeal and was denied relief; "law of the case" doctrine precluded appellate court from reconsidering claim in criminal appeal and granting relief).
Each reason compels us to deny relief.