in Re: Calvin Yarbrough

Opinion

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

No. 06-11-00148-CR ______________________________

IN RE: CALVIN YARBOROUGH

Original Mandamus Proceeding

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

This Court is in receipt of a letter from Calvin Yarborough. 1 Allowing for a liberal

interpretation of a request made by Yarborough near the letter‘s end, we will treat this

correspondence as a petition for mandamus relief. Yarborough asks us to ―[o]rder the Harrison

County District Judge Honorable William T. Hughey to produce and provide [Yarborough] with

the ‗entire‘ ‗certified‘ post-conviction discovery and Grand Jury minutes.‖ We deny

Yarborough‘s request.

We begin by pointing out that Yarborough has supplied this Court with nothing

establishing the existence of any ―post-conviction discovery‖ materials. For example, there is

nothing suggesting that any evidentiary hearing was ever held incident to any habeas corpus

proceedings. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(d) (West Supp. 2010). Neither

has Yarborough provided any record or information suggesting what, if any, ―minutes‖ of the

Harrison County grand jury might exist; or how Yarborough would be entitled to such items,

assuming their existence. See generally TEX. CODE CRIM. PROC. ANN. art. 20.012 (West 2005),

art. 20.02 (West Supp. 2010).

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

1 This Court affirmed Yarborough‘s conviction for aggravated assault. Yarborough v. State, 178 S.W.3d 895 (Tex. App.––Texarkana 2005, pet. ref‘d).

2 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 Yarborough‘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.‖). Yarborough

has failed in his obligation to provide this Court with a sufficient record establishing his right to

mandamus relief. We deny his requested relief.

We also take this opportunity to correct some evident misunderstandings on Yarborough‘s

part. In his letter/petition, he states he has ―a pending appeal,‖ cause number 06-05-00067-CR.

This cause number, cited above with the Southwest Reporter citation, refers to an opinion issued

by this Court in 2005. The Texas Court of Criminal Appeals refused Yarborough‘s petition for

discretionary review, and our mandate issued March 16, 2006. Yarborough‘s conviction in that

case is final; he has no appeal pending. See Beal v. State, 91 S.W.3d 794, 795 (Tex. Crim. App.

2002) (for purposes of enhancement, conviction final upon issuance of appellate court‘s mandate).

Yarborough also references a letter from this Court of May 4, 2011, wherein we advised

him we had overruled a motion for post-conviction discovery, filed in cause number

06-05-00067-CR, and advising of costs should he wish to purchase copies of records from this

Court. Our letter stated this Court‘s records did not include any grand jury minutes. We did not

explicitly state that this Court‘s records also did not include anything that could constitute

3 ―post-conviction discovery.‖ Upon review of the 2005 conviction, cause number

06-05-00067-CR, we have found neither a hearing or record of any motion for new trial nor any

indication of any post-conviction proceeding. Therefore, not only has Yarborough failed to

provide any record upon which he could establish a basis for mandamus relief, there is no record in

this Court‘s possession which would satisfy his request to purchase any record items.

As for Yarborough‘s request for a file-marked copy of his letter/petition, we include such a

copy with this Court‘s instant ruling.

Finally, Yarborough requests ―a file marked copy of transcriptions that the ‗wrong‘

appellate number 06-11-00096-CR in your May 18, 2011 response has been corrected.‖ On

May 18, 2011, this Court wrote Yarborough to inform him a previous petition for mandamus relief

had been denied; that petition bore our cause number 06-11-00096-CR. That ―petition,‖ like the

instant one, was a one-page letter to this Court describing Yarborough‘s lack of success contacting

his prior appellate attorney, and then asking this Court to order the Harrison County District Clerk

to provide Yarborough with transcriptions of grand jury minutes. We generously treated this

letter as a petition for mandamus relief, 2 which we denied, as this Court lacks jurisdictional

authority over district clerks. See In re Yarborough, No. 06-11-00096-CR, 2011 Tex. App.

LEXIS 3798 (Tex. App.—Texarkana May 18, 2011, orig. proceeding) (mem. op., not designated

for publication). There is nothing to correct in our May 18, 2011, correspondence.

2 We refer Yarborough to TEX. R. APP. P. 52, regarding the requisites of petitions for mandamus relief.

4 We deny Yarborough‘s petition for writ of mandamus.

Bailey C. Moseley Justice

Date Submitted: August 10, 2011 Date Decided: August 11, 2011

Do Not Publish