In Re Brian Keith Melton v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 7, 2023
• Docket: 06-23-00037-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00037-CR

IN RE BRIAN KEITH MELTON

Original Mandamus Proceeding

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION

Brian Keith Melton, proceeding pro se, filed a petition seeking a writ of mandamus

against the Honorable Andrew Bench, presiding judge of the 196th Judicial District Court,

regarding matters in Hunt County. As best we can discern from his petition, Melton asks this

Court to order the trial court to rule on his motion to vacate the judgment of conviction in his

case. Because Melton failed to provide us with a sufficient record to support his entitlement to

mandamus relief, we deny the petition.

Mandamus will issue “only when the mandamus record establishes (1) a clear abuse of

discretion . . . , and (2) the absence of a clear and adequate remedy at law.” In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878

S.W.2d 131, 132 (Tex. 1994) (per curiam) (orig. proceeding)); see Walker v. Packer, 827 S.W.2d

833, 839–40 (Tex. 1992) (orig. proceeding). “It is the relator’s burden to provide this Court with

a sufficient record to establish his or her right to mandamus relief.” Id. (citing Walker, 827

S.W.2d at 839–40; In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—

Texarkana 2006, orig. proceeding)); see TEX. R. APP. P. 52.3, 52.7(a).

Melton’s petition states that, on August 23, 2021, he filed a motion to vacate the

judgment of conviction in his case. On August 24, 2021, he filed a request for a ruling on his

motion, and on October 8, 2021, he filed an amended motion to vacate. Even so, Melton has not

met his burden to provide a record sufficient to show himself entitled to mandamus relief.

Rule 52.3 of the Texas Rules of Appellate Procedure requires the person filing the

petition for a writ of mandamus to “certify that he or she has reviewed the petition and concluded

2 that every factual statement in it is supported by competent evidence included in the appendix or

record.” TEX. R. APP. P. 52.3(j). Additionally, the appellate rules require that the appendix

contain “a certified or sworn copy of any order complained of, or any other document showing

the matter complained of,” TEX. R. APP. P. 52.3(k)(1)(A), and that the record contain “a certified

or sworn copy of every document that is material to the relator’s claim for relief and that was

filed in any underlying proceeding,” TEX. R. APP. P. 52.7(a)(1).

Here, although the appendix contains copies of the indictment, judgment, motion, request

for ruling, and amended motion stamped “filed,” as well as unstamped and unsworn copies of the

record from two different hearings, the documents are neither certified nor sworn to be true and

correct copies. Moreover, they do not demonstrate that his motions were presented to the trial

court and do not show how long the motions have been pending before the trial court, assuming

they were presented.

“Because the record in a mandamus proceeding is assembled by the parties,” we must

“strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the

mandamus record.” In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.—

Dallas Mar. 22, 2019, orig. proceeding) (mem. op.) (quoting In re McKinney, No. 05-14-01513-

CV, 2014 WL 7399301, at *1 (Tex. App.—Dallas Dec. 15, 2014, orig. proceeding) (mem. op.)).

We may deny a petition for a writ of mandamus for an inadequate record alone. See In re

Blakeney, 254 S.W.3d at 662.

3 Because Melton has not shown himself entitled to the extraordinary remedy of

mandamus, we deny his petition.

Scott E. Stevens Chief Justice

Date Submitted: March 6, 2023 Date Decided: March 7, 2023

Do Not Publish