in Re Bryan Chance McBee

• Court: Court of Appeals of Texas
• Decided: May 27, 2015
• Docket: 09-15-00179-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00179-CR ____________________

IN RE BRYAN CHANCE MCBEE _________________________________________________________________________

Original Proceeding _________________________________________________________________________

MEMORANDUM OPINION

Bryan Chance McBee petitioned for a writ of mandamus compelling the

judge of the 221st District Court of Montgomery County to require the court

coordinator to set for hearing McBee’s motion for a loan of the duplicate record

that was prepared for an appeal. See generally Tex. R. App. P. 34.5(g), 34.6(h).

McBee does not contend that the trial court retains plenary power over the criminal

case.1

There is no active habeas proceeding; accordingly, this Court has mandamus

jurisdiction. See Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115,

1 We issued a mandate of affirmance in July 2014. See generally McBee v. State, No. 09-13-00232-CR, 2014 WL 1400656, at *5 (Tex. App.—Beaumont Apr. 9, 2014, pet. ref’d) (mem. op.) (affirming judgment as modified). 1 117-18 (Tex. Crim. App. 2013). However, the mandamus petition lacks certified or

sworn copies of “every document that is material to the relator’s claim for relief[.]”

See Tex. R. App. P. 52.7(a)(1). McBee suggests he cannot provide copies of

documents because he is a prisoner. McBee also failed to provide proof of service

on the respondent and the prosecuting attorney. See Tex. R. App. P. 9.5.

The petition nevertheless demonstrates that McBee is not entitled to

mandamus relief because he has not shown that he has a clear and indisputable

right to the requested relief. See In re Williams, No. 09-09-00584-CV, 2010 WL

183861, at *1 (Tex. App.—Beaumont Jan. 21, 2010, orig. proceeding) (mem. op.);

see also In re Cash, No. 06-04-00045-CV, 2004 WL 769473, at *1 (Tex. App.—

Texarkana Apr.13, 2004, orig. proceeding) (mem. op.) (A trial court has no duty to

rule on “free-floating motions unrelated to currently pending actions.”).

The relator has not shown that he is entitled to mandamus relief.

Accordingly, we deny the petition for writ of mandamus.

PETITION DENIED.

PER CURIAM

Submitted on May 26, 2015 Opinion Delivered May 27, 2015 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ. 2