Opinion
NUMBER 13-18-00248-CR
05-09-2018
IN RE JORGE ARELLANO
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relator Jorge Arellano, proceeding pro se, filed a petition for writ of mandamus in the above cause through which he seeks to compel the trial court to vacate a judgment nunc pro tunc as void. Relator contends that he lacked notice of the State's motion to enter a nunc pro tunc judgment, and that the trial court committed error in ordering his sentences to be served consecutively. This original proceeding arises from trial court cause number 06-CR-770-E in the 357th District Court of Cameron County which was previously heard on direct appeal to this Court. See Arellano v. State, No. 13-07-00356- CR, 2009 WL 942896, at *1 (Tex. App.—Corpus Christi Jan. 8, 2009, pet. ref'd) (mem. op., not designated for publication) (affirming appellant's judgment of conviction for three counts of intoxication manslaughter and one count of intoxication assault).
To be entitled to mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a purely ministerial act not involving a discretionary or judicial decision. In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).
It is the relator's burden to properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). In addition to other requirements, the relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record" and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. As the party seeking relief, the relator has the burden of providing the Court with a sufficient mandamus record to establish his right to mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record).
In this case, relator has failed to provide an appendix or record in support of his claim for relief and, accordingly, has failed to meet his burden to obtain relief. See Walker, 827 S.W.2d at 837; see generally TEX. R. APP. P. 52.3. Further, to the extent that relator may be seeking correction of an alleged judicial error rather than a clerical error, see, e.g., Blanton v. State, 369 S.W.3d 894, 898 (Tex. Crim. App. 2012), relator's claim is in effect an application for post-conviction habeas corpus relief. See id.; see also In re Guzman, Nos. 05-16-01110-CV & 05-16-01111-CV, 2017 WL 3393795, at *1 (Tex. App.—Dallas Aug. 8, 2017, orig. proceeding) (mem. op.) (not designated for publication). Only the Texas Court of Criminal Appeals has jurisdiction in final, post-conviction felony proceedings. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2017 1st C.S.); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding); see also Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 118 (Tex. Crim. App. 2013) (orig. proceeding) (stating that absent a pending application for habeas corpus filed under Article 11.07 of the Code of Criminal Procedure, appellate courts have the jurisdiction to rule on a mandamus petition requesting access to materials that could be used in a future habeas application).
The Court, having examined and fully considered relator's petition for writ of mandamus, is of the opinion that relator has failed to meet his burden to obtain relief. See In re Harris, 491 S.W.3d at 334; In re McCann, 422 S.W.3d at 704. Accordingly, we DENY the petition for writ of mandamus.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 9th day of May, 2018.