                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00099-CV


                       IN RE RICARDO GUTIERREZ, RELATOR

                              ORIGINAL PROCEEDING

                                    April 17, 2014

                           MEMORANDUM OPINION
                  Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.


       Before the Court is the petition for writ of mandamus filed pro se by relator

Ricardo Gutierrez, an inmate in the Texas Department of Criminal Justice, Institutional

Division. See TEX. GOV'T CODE ANN. § 22.221 (West 2010); TEX. R. APP. P. 52. In his

petition, Gutierrez asks that we direct the respondent, the Honorable Ed Self, presiding

judge of the 242nd Judicial District Court of Swisher County, to set aside his conviction

or sentence and conduct a new punishment hearing or new trial. We will deny the

petition.
      Gutierrez’s petition reflects events spanning more than twenty years. He was

indicted for aggravated sexual assault of a child.1 Pursuant to a plea bargain, he

entered a guilty plea in December 1992. The trial court honored the plea bargain and

sentenced him to ten years of incarceration, probated for five years, and a $1000 fine.

Gutierrez’s probation was revoked in 1996 and he was sentenced to confinement for ten

years. Gutierrez appealed his revocation and we affirmed it in 1997. Gutierrez v. State,

No. 07-96-0443-CR, 1997 Tex. App. LEXIS 5419 (Tex. App.—Amarillo October 15,

1997, no pet.).    In 1998, Gutierrez filed a writ of habeas corpus with the Court of

Criminal Appeals that was denied. Ex parte Gutierrez, App. No. 38,985-01.2 He then

filed a petition for writ of mandamus with this Court that was conditionally granted. In re

Gutierrez, No. 07-00-0482-CV, 2000 Tex. App. LEXIS 8429 (Tex. App.—Amarillo Dec.

19, 2000, original proceeding). For reasons explained in our opinion, we directed the

trial court to set aside the original 1992 judgment. Citing Heath v. State, 817 S.W.2d

335, 336-37 (Tex. Crim. App. 1991), we said that as the result of setting aside his

sentence and conviction, Gutierrez “and the State will thereby be returned to the

positions they occupied before the plea bargain was entered into.” 2000 Tex. App.

LEXIS 8429 at *7.


      At his second trial, Gutierrez rejected the State’s plea bargain offer, plead not

guilty and proceeded to jury trial in July 2001, at which the jury found him guilty and

sentenced him to imprisonment for 50 years. We affirmed that conviction in Gutierrez v.

State, No. 07-01-0334-CR, 2003 Tex. App. LEXIS 9319 (Tex. App.—Amarillo October

      1
          TEX. PENAL CODE ANN. § 22.021 (West 2012).
      2
       Gutierrez also filed petitions in federal court. See Gutierrez v. Quarterman, No.
2:05-CV-0271, 2009 U.S. Dist. LEXIS 127721 (N.D. Tex. Jan. 6, 2009).

                                            2
31, 2003, pet. ref’d). In 2005, Gutierrez filed an application for writ of habeas corpus

challenging his conviction and sentence. This application was denied. Ex parte

Gutierrez, App. No. 38,985-02. In November 2013, Gutierrez filed with the 242nd District

Court a subsequent writ of habeas corpus pursuant to article 11.07 of the Code of

Criminal Procedure.3 The writ was forwarded to the Court of Criminal Appeals and

dismissed without a written order. Ex parte Gutierrez, App. No. 38,985-06. Gutierrez

now claims that this dismissal leaves him no adequate remedy at law, making

mandamus relief appropriate.


       Mandamus relief is an extraordinary remedy. In re Southwestern Bell Tel. Co.,

235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); In re Braswell, 310 S.W.3d 165,

166 (Tex. App.—Amarillo 2010, orig. proceeding). To be entitled to mandamus relief in

a criminal case, a relator must establish that: (1) he has no other adequate legal remedy

to redress the alleged harm, and (2) under the relevant facts and law, the act sought to

be compelled is purely ministerial, not involving a discretionary or judicial decision. State

ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007) (orig. proceeding); State ex rel. Hill v. Court of Appeals for Fifth Dist., 34

S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). An act is ministerial if it

does not involve the exercise of any discretion and the relator has a clear right to relief.

State ex rel. Hill, 34 S.W.3d at 927; In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—

Dallas 2005, orig. proceeding). The relief sought must be clear and indisputable, such

that its merits are beyond dispute. See State ex rel. Hill, 34 S.W.3d at 927-28; Daisy,

156 S.W.3d at 924.


       3
           TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2013).

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       Gutierrez contends his 50-year sentence was illegal because the sentence he

could receive in his second trial was “capped” at ten years, the sentence to which the

parties agreed at the time of his original guilty plea and that which he received after his

probation was revoked. He cites us no authority for his contention the sentence he

received at the revocation proceeding had the effect of capping any later sentence on

retrial, and we see no merit in the contention. As we noted in our 2000 opinion, when

Gutierrez was successful in causing his 1992 conviction to be overturned, the parties

were returned to their original positions, prior to the original plea bargain. 2000 Tex.

App. LEXIS 8429 at *7; see Godsey v. State, 989 S.W.2d 482, 494-95 (Tex. App.—

Waco 1999, pet. ref’d). His petition for mandamus does not establish he received an

illegal sentence after his second trial.


       Gutierrez also contends in his mandamus petition that, at his second trial, the

court erred by submitting to the jury an incorrect parole instruction. According to his

petition, the charge told the jury he would be eligible for parole after serving one half of

his sentence. Gutierrez contends a correct instruction would have said he would be

eligible after serving a fourth of the assessed sentence. He asserts the erroneous

language in the jury charge now is causing the parole board to calculate incorrectly his

eligibility for parole. It is Gutierrez’s burden to show he is entitled to mandamus relief.

In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding).

While a claim of a void judgment may be raised by way of a petition for writ of

mandamus, see In re Hamel, 180 S.W.3d 226 (Tex. App.—San Antonio 2005, original




                                             4
proceeding);4 a jury charge error such as that raised by Gutierrez would not render the

trial court’s judgment void. See Ex parte Tuan Van Truong, 770 S.W.2d 810, 813 (Tex.

Crim. App. 1989). Gutierrez has not demonstrated entitlement to mandamus relief

through his assertion of charge error at his second trial.5


       Gutierrez also argues North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23

L.Ed.2d 656 (1969), supports his complaint the harsher sentence he received on retrial

was improper.      On due process grounds, the Court there held that to assure the

absence of any sense of vindictiveness, when a judge imposes a more severe sentence

on a defendant after a new trial, the reasons for doing so must affirmatively appear on

the record and must be based on objective information made a part of the record. Id. at

726.       Drawing from that holding, Gutierrez asserts the trial court acted out of

vindictiveness when it submitted the incorrect parole instruction to the jury on his

second trial.    Assuming, without deciding, that proof of such a circumstance could

support a claim for the extraordinary relief of mandamus, the mandamus record

submitted here contains not the slightest proof of any vindictiveness toward Gutierrez

on his second trial.6 We reiterate it is the relator’s burden to provide a record supporting


       4
        See also In re Sensitive Care, Inc., 28 S.W.3d 35, 41 (Tex. App.—Fort Worth
2000, original proceeding) (“[m]andamus is the proper method by which to attack a void
judgment”).
       5
        And we note Gutierrez has not included in his appendix proof that the parole
board is being misled in its calculation of his eligibility by the language in the jury
charge. See TEX. R. APP. P. 52.3(k) (appendix must contain certified or sworn copy of
any order or other document showing the matter complained of).
       6
        We also must point out that the error Gutierrez sees in the parole instruction,
the merits of which we need not examine, is the opposite of the instruction a vindictive
court would submit. A vindictive court, trying to encourage a long sentence, would tell
the jury the defendant would be eligible for parole sooner, not later. Applied here, a

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the issuance of mandamus. In re Davison, 153 S.W.3d at 491. Gutierrez received a

50-year sentence from a jury after a not-guilty plea and jury trial. His original ten-year

sentence was assessed pursuant to a plea bargain and a guilty plea, followed by

revocation of probation. His mandamus petition gives no persuasive reason for the

application of the “Pearce presumption of vindictiveness” to his case. See Wasman v.

United States, 468 U.S. 559, 566, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (discussing

circumstances warranting application of remedy required by Pearce).


       Accordingly, we deny Gutierrez’s petition for writ of mandamus.7




                                                  James T. Campbell
                                                      Justice




vindictive court would have told the jury Gutierrez could be paroled after one-fourth of
the sentence the jury awarded, not the one-half the sentence that the instruction here
apparently stated.
       7
         On April 15, 2014, after his petition for mandamus had been submitted to the
panel of this Court, Gutierrez filed a letter advising he would be able to pay the filing fee.
We perceive that Gutierrez filed the letter out of concern that we would find the affidavit
of previous filings he recently filed pursuant to chapter 14 of the Texas Civil Practice &
Remedies Code to be inadequate. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004
(West 2012). Because we have addressed the merits of his mandamus petition, we
need not act on Gutierrez’s request to modify his claim of indigence. It is dismissed as
moot.

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