in Re Billy J. York, Relator

NO. 07-05-0195-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JUNE 21, 2005 ______________________________ In re BILLY J. YORK, Relator _________________________________ FROM THE COUNTY COURT AT LAW NO. 3 O F LUBBOCK COUNTY; NO. 2004-596,105; HON. PAULA LANEHART, PRESIDING _______________________________ Memorandum Opinion in an Original Proceeding _______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Pending before the court is the petition of Billy J. York for a writ of mandamus. Through it, he asks that we order the Honorable Paula Lanehart, County Court at Law No. 2, Lubbock County, to vacate an order abating the proceedings in Cause No. 2004,596-105 “until further order . . . .” We deny the petition. A writ of mandamus is extraordinary relief and not available simply for the asking. In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 753 (Tex. 2001) (stating that mandamus is an extraordinary remedy available only in limited circumstances). One seeking it must illustrate not only that he lacks an adequate remedy at law but also that the trial court clearly abused its discretion or violated a ministerial duty. In re Morris , 93 S.W.3d 388, 389 (Tex. App.–Amarillo 2002, orig. proceeding). Furthermore, seldom will a writ issue to supervise or correct incidental rulings of a trial judge. Abor v. Black , 695 S.W.2d 564, 566 (Tex. 1985). Included within the category of such rulings are pleas in abatement, among other things. Id. at 566-67; Texas Commerce Bank, N.A. v. Prohl , 824 S.W.2d 228, 229 (Tex. App.–San Antonio 1992, no writ) (holding that mandamus is “generally not available to control the incidental rulings of a trial court, such as ruling on pleas in abatement”). Here, York asks us to review the trial court’s decision viz a plea in abatement. In doing so, he contends that the trial court abused its discretion. Yet, nothing is said about the other element that must be established to succeed, i.e. the element concerning the want of an adequate legal remedy. Nor does he explain what circumstances, if any, exist to remove his petition from the general rule prohibiting the issuance of mandamus relief to supervise or correct rulings on pleas of abatement. Given these deficiencies, we deny the petition. Brian Quinn Chief Justice of the terms of her community supervision. Nevertheless, on the strength of her witnesses’ testimony that she had changed and that she could successfully “deal with her drug problem” with the help of an out-patient drug abuse program, she implored the court to reinstate her community supervision. The trial court, apparently unpersuaded, denied the request and imposed the original two year sentence. By her sole point of error, appellant maintains the trial court was without the authority to place her on community supervision because of her prior felony convictions. Thus, the order placing her on community supervision was void, as was the subsequent order revoking such supervision. We disagree. In urging her position, appellant relies upon section 4(e) of article 42.12 of the Texas Code of Criminal Procedure which provides, in pertinent part, that “[a] defendant is eligible for community supervision . . . only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.” (Vernon Supp. 2004). (footnote: 1) According to appellant, the 1979 version of article 42.12 provided that “[n]othing herein shall limit the power of the court to grant a probation of sentence regardless of the recommendation of the jury or prior conviction of the defendant.” Art. 42.12, § 3c (Vernon 1979). It follows, argues appellant, that the deletion of that language in today’s statute exhibits “legislative intent to change the law, and thereby bar a court from granting probation where a jury cannot give it either.” Thus, since a jury could not have awarded appellant community supervision in this case because of her prior felony convictions, the trial court similarly had no authority to grant it. In asserting this position, however, appellant concedes she can provide no authority to support it. The circumstances under which a trial court may award community supervision are clearly delineated by statute. First, a court may only suspend the imposition of sentence and place a defendant on community supervision if it determines that it is “in the best interest of justice, the public, and the defendant” to do so. Art. 42.12, § 3(a). Next, a criminal defendant is ineligible to receive community supervision from a judge if he is sentenced: (1) to a term of imprisonment that exceeds 10 years; or (2) to a term of confinement in state jail. Art. 42.12, § 3(e). Finally, under section 3G of the statute, a court may not grant community supervision to defendants found guilty of a laundry list of offenses or in cases where an affirmative deadly weapon finding is entered. Art. 42.12, § 3G(a). Because, by appellant’s own admission, there is no legislative history to support the argument, we decline her invitation to engraft into the Legislature’s decision to delete the language referenced above an intent to further restrict a judge’s power to award community supervision. Furthermore, the State responds, and we agree, that even if appellant was ineligible for judge ordered community supervision, she may not attack the unlawful grant of it for the first time on appeal after that supervision has been revoked. Cf. Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Cr.App. 2001) (holding that unlawful grant of probation did not entitle petitioner to habeas corpus relief after community supervision was revoked). Additionally, appellant affirmatively sought action by the trial court–that it grant the terms of the plea bargain entered into by her and the State and that it place her on community supervision. See Prytash v. State, 3 S.W.3d 522, 531 (Tex.Cr.App. 1999) (citing George E. Dix and Robert O. Dawson, 43 Texas Practice–Criminal Practice and Procedure § 42.141 (Supp. 1999)). What is more, if appellant had had her way, she would have been reinstated on community supervision following the revocation proceeding in October of 2003. Thus, even if the trial court’s original grant of community supervision was a nullity, she is now estopped from making an appellate error of an action she induced. Id . Appellant’s sole point of error is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish. FOOTNOTES 1: