In Re Calvin Wayne Burnham v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 7, 2025
• Docket: 06-25-00091-CR
• Status: Published

Opinion

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

No. 06-25-00091-CR

IN RE CALVIN WAYNE BURNHAM

Original Mandamus Proceeding

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

Relator, Calvin Wayne Burnham, has asked this Court to issue a writ of mandamus and

compel Panola County District Court Judge Leann Rafferty and Panola County District Clerk

Lindsey Smith to produce discovery documents allegedly acquired post-trial.1 We deny the

requested relief.

I. Mandamus Review

In a criminal case, “[m]andamus relief may be granted if a relator shows that: (1) the act

sought to be compelled is purely ministerial, and (2) there is no adequate remedy at law.” In re

McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). To meet the burden

to establish entitlement to mandamus relief, a relator is required to show that the trial court failed

to complete a ministerial act. See In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim.

App. 2013) (orig. proceeding). An act is considered ministerial “if the relator can show . . . a

clear right to the relief sought.” Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011)

(orig. proceeding) (quoting State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana,

236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding)). A clear right to the requested

relief is shown when the facts and circumstances require but “one rational decision ‘under

1 This Court affirmed Burnham’s convictions in 2010. See Burnham v. State, No. 06-10-00038-CR, 2010 WL 5140777 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06-10-00038-CR, 2011 WL 13176580 (Tex. App.—Texarkana Jan. 26, 2011, no pet.) (op. on rehearing); Burnham v. State, No. 06-10-00039-CR, 2010 WL 5151240 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06-10-00040-CR, 2010 WL 5140795 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06- 10-00041-CR, 2010 WL 5140798 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06-10-00042-CR, 2011 WL 5140803 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06-10-00043-CR, 2010 WL 5140804 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06-10-00044-CR, 2020 WL 5140806 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication); Burnham v. State, No. 06-10-00045-CR, 2010 WL 5140805 (Tex. App.—Texarkana Dec. 15, 2010, pet. ref’d) (mem. op., not designated for publication). 2 unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and

clearly controlling legal principles.’” In re State ex rel. Weeks, 391 S.W.3d at 122 (quoting

Bowen, 343 S.W.3d at 810). “Mandamus is not available to compel a discretionary act as

distinguished from a ministerial act.” State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899

(Tex. Crim. App. 1984) (orig. proceeding).

A petitioner seeking mandamus relief must comply with the Texas Rules of Appellate

Procedure. Among those requirements, a petitioner must attach to the petition “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); In re Long, 607 S.W.3d 443, 445

(Tex. App.—Texarkana 2020, orig. proceeding).

II. Analysis

Burnham claims that he sent a request for documents to the Panola County district

attorney. Attached to his petition, Burnham has included a cover letter and a request, addressed

to the district attorney, which are stamped “copy” and file-marked by the Panola County district

clerk. However, those documents are not certified or sworn. As noted above, a party seeking

mandamus relief must attach “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). Rule 52.3(k)(1) provides, “The appendix must . . . 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).

Additionally, a “party’s right to mandamus relief generally requires a predicate request

for some action and a refusal of that request.” In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) 3 (per curiam) (orig. proceeding). Burnham has presented this Court with no indication that any

motion was presented to the trial court for ruling.

Finally, Burnham presents his petition for relief as a request to compel action by the trial

court and the district clerk. From the documents supplied, though, the only request Burnham

allegedly made was to the district attorney. This Court has no jurisdiction to issue a writ of

mandamus against a district clerk or district attorney unless necessary to enforce our jurisdiction.

TEX. GOV’T CODE ANN. § 22.221(a) (Supp.); In re Washington, 7 S.W.3d 181, 182 (Tex. App.—

Houston [1st Dist.] 1999, orig. proceeding) (per curiam); In re Meyer, 482 S.W.3d 706, 709

(Tex. App.—Texarkana 2016, orig. proceeding).

III. Conclusion

Because Burnham has not complied with the rules governing the application for

extraordinary relief and because this Court has no jurisdiction to issue a writ of mandamus

against a district clerk under these circumstances, we deny his petition.2

Scott E. Stevens Chief Justice

Date Submitted: July 3, 2025 Date Decided: July 7, 2025

Do Not Publish

2 In his request for relief, Burnham also asks this Court to “compel” “statutory compliance” by the Panola County Sheriff’s Office. Once again, we direct Burnham to Section 22.221(a) of the Texas Government Code. See TEX. GOV’T CODE ANN. § 22.221(a) (Supp.). This Court lacks mandamus jurisdiction over a sheriff unless necessary to enforce said jurisdiction. Id. 4