Opinion
No. 05-16-00007-CV
01-12-2016
IN RE PATRICIA DUNLAP McMILLION, Relator
Original Proceeding from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 57504-15
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Evans
Patricia Dunlap McMillion requests that the Court reverse the portion of the judgment in her criminal case which required her to pay $10,000 in fines and court costs. Because McMillion has already appealed her conviction, see McMillion v. State, No. 05-09-01014-CR, 2011 WL 2028214 (Tex. App.—Dallas May 25, 2011, no pet.) (mem. op., not designated for publication), we treat her pleading as a petition for writ of mandamus and deny relief.
McMillion's petition is unaccompanied by an appendix or record and for that reason does not satisfy the requirements of rule 52.3(k) and 52.7 of the Texas Rules of Appellate Procedure. The petition is also not certified as required by rule 52.3(j). Although these deficiencies alone constitute sufficient reason to deny mandamus relief, in the interest of judicial economy, we address the petition.
Mandamus is appropriate in a criminal case if the relator has no other adequate legal remedy and the act sought to be compelled is purely ministerial. State of Tex. ex rel. Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180-81 (Tex. Crim. App. 2001) (orig. proceeding). McMillion could have asserted her complaint regarding the assessment of the fine and court costs in the appeal from her conviction. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (award of costs or attorney's fees in a judgment of conviction is a criminal proceeding that can be addressed on direct appeal); Ex parte Pena, 71 S.W.3d 336, 337 (Tex. Crim. App. 2002) (relator waived complaints concerning imposition of fine by failing to raise those complaints on direct appeal). She failed to do so. See McMillion, 2011 WL 2028214, at *1. Mandamus is not a substitute for an appeal. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (orig. proceeding). It is not available if another remedy, such as direct appeal, though it would have been adequate, was not timely exercised. See In re Pannell, 283 S.W.3d 31, 35 (Tex. App.—Fort Worth 2009, orig. proceeding).
We deny the petition.
/David W. Evans/
DAVID EVANS
JUSTICE 160007F.P05