In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-13-0018-CV
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IN RE MICHAEL NELSON CRYSTER, RELATOR
Original Proceeding Arising From Proceedings Before the 100th District Court
Collingsworth County, Texas
Trial Court No. 2376
Honorable Stuart Messer, Presiding
March 13, 2013
MEMORANDUM OPINION
Before Quinn, C.J., and Campbell and Pirtle, JJ.
Relator, Michael Nelson Cryster, an inmate proceeding pro se and in forma
pauperis, seeks a writ of mandamus to enforce an order issued by the Honorable Stuart
Messer on November 14, 2011, granting his request for a free record of his prior
criminal case. For the reasons expressed herein, we deny Relator’s request.
FACTUAL BACKGROUND
According to Relator’s petition, on January 21, 1999, in trial court cause number
2376, he was convicted of burglary of a habitation and sentenced to seventy-five years
confinement. Relator has requested the trial court to provide a free record for the stated
purpose of pursing post-conviction relief.1 On November 14, 2011, the trial court
entered an order granting that relief. Relator attached a copy of that order as an
Appendix to his petition. On September 5, 2012, Relator filed an “Advisory to the Court”
complaining that he had yet to receive the record and requested the trial court compel
the trial court clerk and court reporter to comply with the November 14, 2011 order. On
October 29, 2012, Relator filed a petition for writ of mandamus seeking to enforce
Judge Messer’s order for a free record. That petition was denied by opinion in In re
Cryster, No. 07-12-0477-CV, 2012 Tex. App. LEXIS 9328 (Tex.App.—Amarillo Nov. 1,
2012, orig. proceeding).
On January 31, 2013, Relator filed a second petition for writ of mandamus again
seeking enforcement of the trial court’s November 14, 2011 order. This time he asserts
that on November 12, 2012, he sought compliance with Judge Messer’s order by filing a
petition for mandamus relief against the district clerk and court reporter in the trial court.
According to his second petition, Judge Messer has not taken any action and Relator
requests this Court to compel him to rule on that mandamus action.
1
Ordinarily, an indigent criminal defendant is not entitled, either as a matter of equal protection or due
process, to a free transcription of prior proceedings for use in pursuing post-conviction habeas corpus
st
relief. Escobar v. State, 880 S.W.2d 782, 783-84 (Tex.App.—Houston [1 Dist.] 1993, no pet.).
2
By letter dated February 4, 2013, this Court requested that Judge Messer file a
response to Relator’s second petition. On March 4, 2013, Judge Messer complied.
According to the response, the court reporter who transcribed Relator’s trial in 1999 has
passed away; however, the reporter’s stenography notes of the hearing have been
found and a record is being prepared. The response also provides that a copy of the
clerk’s record will be provided to Relator upon completion of the reporter’s record.
MANDAMUS STANDARD OF REVIEW
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only
to correct a clear abuse of discretion or the violation of a duty imposed by law when
there is no other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d
916, 917 (Tex. 1985)) (orig. proceeding). To show entitlement to mandamus relief, a
relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for
performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979).
ANALYSIS
Judge Messer’s response indicates that he is in the process of enforcing his
order of November 14, 2011. Consequently, Relator is not entitled to extraordinary
relief at this time. Should the reporter’s record not be filed within a reasonable period of
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time considering the circumstances,2 this Court would entertain a subsequent petition to
compel a ruling on the mandamus proceeding pending before the trial court at this time.
CONCLUSION
Consequently, Relator’s petition for mandamus relief is denied.
Per Curiam
2
This Court is unable to speculate as to what would constitute a “reasonable” period of time as that would
involve a determination of the facts, circumstances, and attendant delays associated with having another
court reporter prepare a record from the notes of a deceased reporter. While this Court is aware that
Relator has waited over a year for the preparation of that record, the unusual circumstances of this case
(a fourteen year old case and a deceased court reporter) do not dictate that we find the circumstances of
this case render the present delay as being unreasonable.
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