in Re: Brock Jernigan

• Court: Court of Appeals of Texas
• Decided: June 10, 2011
• Docket: 06-11-00114-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________

No. 06-11-00114-CR ______________________________

IN RE: BROCK JERNIGAN

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Brock Jernigan has petitioned this Court for mandamus relief. He complains of the trial

court’s order denying Jernigan an appeal bond. 1 Since Jernigan has an adequate remedy by

appeal, we deny his request for mandamus relief.

The standard for mandamus relief articulated by the Texas Court of Criminal Appeals

requires the relator to establish that (1) there is no adequate remedy at law to redress the alleged

harm; and (2) only a ministerial act, not a discretionary or judicial decision, is being sought. State

ex. rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.

Crim. App. 2007). Due to the nature of this remedy, it is Jernigan’s burden to properly request

and show entitlement to the mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (―Even a pro se applicant for a

writ of mandamus must show himself entitled to the extraordinary relief he seeks.‖).

The Texas Code of Criminal Procedure expressly provides that a trial court’s order

regarding an appeal bond may be appealed. TEX. CODE CRIM. PROC. ANN. art. 44.04(g) (West

2006). Because Jernigan has a right to appeal the trial court’s order, mandamus is not available.

1 From the record before us, it appears Jernigan was placed on deferred adjudication community supervision, subsequently adjudicated and sentenced to five years’ incarceration. He requested a bond while he appealed his conviction and sentence, but the trial court denied bond. In the trial court’s order, that court stated its ruling was based on the pendency of another offense alleging assault, and the potential for Jernigan to commit another offense if released on bond. Jernigan’s appeal of the underlying offense and sentence is pending before this Court, Jernigan v. State, cause number 06-10-00221-CR.

2 See Ordunez v. Bean, 579 S.W.2d 911, 913–14 (Tex. Crim. App. 1979) (because appeal is

available to challenge speedy-trial ruling, mandamus not available).

We deny Jernigan’s request for mandamus relief.

Josh R. Morriss, III Chief Justice

Date Submitted: June 9, 2011 Date Decided: June 10, 2011

Do Not Publish