In Re: Lisa Davis

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.

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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.

Having determined that Relator failed to establish her entitlement to mandamus relief, we deny the petition for writ of mandamus.