Howard Kahmann, Relator v. Honorable William T. Lott, Judge, Respondent--Appeal from 26th District Court of Williamson County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-395-CV
HOWARD KAHMANN,

RELATOR

 
vs.
HONORABLE WILLIAM S. LOTT, JUDGE,

RESPONDENT

 
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

PER CURIAM

 

Relator, Howard Kahmann, has filed a motion for leave to file petition for writ of mandamus and tendered his petition. By his petition, relator seeks a writ of mandamus to compel respondent, the Honorable William S. Lott, to order the preparation of a statement of facts at no cost to relator in Williamson County cause number 92-003-K26, which is presently pending on appeal in this Court as cause number 3-92-406-CR, styled Howard Bauder Kahmann, Jr., Appellant v. The State of Texas, Appellee.

Following his conviction in the above referenced cause, relator filed an affidavit of indigence and moved for the preparation of a free statement of facts. Tex. R. App. P. 53(j). The State challenged relator's claim of indigence. At a hearing on the motion, relator refused to testify. The respondent recessed the hearing without making any finding concerning relator's indigence. A transcription of the court reporter's notes from this hearing has been received by this Court.

This Court may issue a writ of mandamus only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer,, 827 S.W.2d 833, 839 (Tex. 1992); Strake v. First Court of Appeals, 704 S.W.2d 746 (Tex. 1986). This Court may order the respondent to proceed to judgment but may not direct that he enter a particular judgment for a certain party. Tex. State Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 417 (Tex. 1965); Fulton v. Finch, 346 S.W.2d 823 (Tex. 1961).

Relator's motion for leave to file petition for writ of mandamus is granted and the petition filed. We conditionally grant the writ of mandamus in part. Respondent, the Honorable William S. Lott, is directed to make a written finding as to whether relator, Howard Kahmann, is or is not presently indigent. If respondent finds that relator is presently indigent, he shall also order the court reporter to prepare a statement of facts in Williamson County cause number 92-003-K26 at no cost to relator. This finding and order, if any, shall be filed in the record of that cause no later than September 10, 1992. This Court assumes that respondent will comply with our directive. If he fails to do so, a writ of mandamus will issue. All other relief requested in relator's petition for writ of mandamus is denied.

 

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

 

Motion for Leave to File Petition for Writ of Mandamus Granted; Petition for Writ of

Mandamus Conditionally Granted in Part and Denied in Part

 

Filed: August 31, 1992

 

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