Court of Appeals of Texas, Sixth District, Texarkana
Submitted: July 16, 2019
Original Mandamus Proceeding
Morriss, C.J., Burgess and Stevens, JJ.
E. Stevens, Justice
original proceeding, Relator Andre Renor Evans, proceeding
pro se, petitioned for a writ of mandamus compelling the
Honorable Ralph Strother, judge of the 19th Judicial District
Court, McLennan County, Texas (Respondent), to comply with
this Court's mandate requiring the trial court to provide
Evans with a new punishment hearing. Evans was convicted on three
counts of trafficking and sentenced to life in prison on each
offense. On appeal, the third trafficking conviction (Count
III), because of insufficient evidence, was modified to a
conviction for compelling prostitution and remanded to the
trial court for a punishment proceeding. Apparently unbeknown
to Evans, the State decided to forego the new punishment
hearing and filed a waiver of Count III, which was approved
by the trial court. Thus, Count III was effectively
dismissed. Because we find this dispute is now moot, we
dismiss Evans' petition for writ of mandamus.
entitled to mandamus relief in a criminal case, the relator
must show (1) that he has no adequate remedy at law and (2)
that the action he seeks to compel is ministerial, not one
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)
(orig. proceeding). These two requirements for obtaining
mandamus relief "are established in a case, where upon
receipt of this Court's mandate, a trial judge fails to
follow the explicit directions of this Court." Berry
v. Hughes, 710 S.W.2d 600, 601 (Tex. Crim. App. 1986)
(orig. proceeding) (per curiam). "The inadequate remedy
at law requirement is met because a defendant has no adequate
method for appealing from a trial court's failure to
follow the mandate of this Court." Id. The
ministerial duty requirement is met because our mandate
imposes a ministerial, non-discretionary duty on the trial
court to act, that is, enforce our judgment. See Tex.
Health & Human Servs. Comm'n v. El Paso Cty. Hosp.
Dist., 351 S.W.3d 460, 472 (Tex. App.-Austin 2011),
aff'd, 400 S.W.3d 72 (Tex. 2013); In re
Perry, No. 06-09-00226-CR, 2010 WL 58966, at *1 (Tex.
App.-Texarkana Jan. 7, 2010, orig. proceeding) (mem. op., not
designated for publication).
jury trial, Evans was convicted in trial court cause number
2015-1341-C1 of, among other offenses, three counts of
trafficking. After pleading true to two enhancement
paragraphs, Evans was sentenced to life in prison on each
offense. On appeal, we found the evidence was sufficient to
sustain two of the trafficking convictions. We concluded that
the evidence was insufficient to support Count III, but we
determined that the judgment should be modified to reflect a
conviction for compelling prostitution, and we remanded the
matter to the trial court to conduct a punishment proceeding.
See Evans v. State, No. 06-16-00064-CR, 2017 WL
1089806 (Tex. App.-Texarkana Mar. 22, 2017, pet. ref'd)
(mem. op., not designated for publication).
filed his petition for writ of mandamus, maintaining that the
trial court failed to conduct the punishment proceeding as
required by our mandate and asking this Court to order the
trial court to do so. We asked the Respondent to file a
response to Evans' petition and received a response that
stated, "As the Court can see, the State, with this
court's approval, has effectively dismissed
Count III.[ Accordingly, the matter of punishment as
to [Count III] is moot, and there is no basis for relief
presented in the petition for mandamus." (Emphasis
added). Respondent continued, "For the Court's
reference, I have provided copies of the aforementioned
State's Waiver of Count III and the Order on State's
Waiver of Count III, contained in the District Court's
record in this case."
State may dismiss a criminal action at any time, subject to
approval by the trial court. Tex. Code Crim. Proc. Ann. art.
32.02; Smith v. State, 70 S.W.3d 848, 850-51 (Tex.
Crim. App. 2002). That said, the State may not dismiss a case
already reduced to a final judgment. Satterwhite v.
State, 36 S.W.3d 145, 147-49 (Tex. App.-Houston [1st
Dist.] 2000, pet. ref'd). "A conviction is not final
until sentencing occurs." Glaze v. State, 675
S.W.2d 768, 769 (Tex. Crim. App. 1984).
after Count III in the original judgment had been modified
and sent back to the trial court for a new punishment
proceeding, the State filed its waiver of Count III before
the punishment hearing was conducted. The trial court then
approved the State's request to waive Count III. Thus,
that charge against Evans was waived, and no sentence was
imposed. Nor was Count III ever reduced to a final judgment.
For these reasons, the State was entitled to waive Count III
at that juncture in the proceedings.
result, this dispute is now moot. If "the ground that
the relief sought had become moot and, therefore, 'there
is nothing to mandamus, ergo mandamus does not lie,
'" dismissal of a petition to mandamus is proper.
In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App.
2014) (orig. proceeding) (quoting State ex rel. Holmes v.
Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984)
reasons stated above, we dismiss Evans' petition for