In re Carrington

438 S.W.3d 867, 2014 WL 3511729, 2014 Tex. App. LEXIS 7715
CourtCourt of Appeals of Texas
DecidedJuly 16, 2014
DocketNo. 07-14-00250-CV
StatusPublished
Cited by17 cases

This text of 438 S.W.3d 867 (In re Carrington) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Carrington, 438 S.W.3d 867, 2014 WL 3511729, 2014 Tex. App. LEXIS 7715 (Tex. Ct. App. 2014).

Opinion

OPINION

MACKEY K. HANCOCK, Justice.

Relator, Bruce Dwayne Carrington, has filed in this Court his petition for writ of mandamus. Though he has unsuccessfully sought mandamus relief on this same general topic on at least three previous occasions, in this, his fourth petition on the [868]*868matter, he again complains of the absence from the record on his direct appeal of the “real” jury communication with the trial court. Again citing the duties outlined in Tex.Code Crim. Proc. Ann. art. 36.27 (West 2006), Relator re-urges this Court to compel Respondent, the Honorable Bradley S. Underwood, presiding judge of the 364th District Court of Lubbock County, to fulfill his ministerial duties “to record into the record all communications between the court and jury in a criminal proceeding.”1 We will deny his petition.

Relator’s Contentions

In his three previous petitions for writ of mandamus, Relator has complained that the jury note to the trial court that is contained as an exhibit in the appellate record of his 2003 aggravated robbery conviction is a forgery and does not represent the actual note prepared by the jury foreman in that criminal proceeding.2 In what is now his fourth attempt at convincing this Court to compel Respondent to direct the inclusion of the “real” jury note into the appellate record, Relator again maintains that the note in the record is a forgery, this time he asserts, “by unknown persons.” Consequently, Relator maintains, Respondent has still failed to make certain that the “real” jury note was made part of the record, and this failure violates Respondent’s duties pursuant to Article 36.27.

Availability of Mandamus

To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress the alleged harm and that he seeks to compel a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim. App.2007) (orig. proceeding). Relator bears the burden to properly request and show entitlement to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig. proceeding). “Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.” Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (per curiam); see In re Villarreal, 96 S.W.3d 708, 710 (Tex.App.-Amarillo 2003, orig. proceeding) (concluding that incarcerated relator acting pro se still obligated to abide by pertinent rules of procedure, including satisfying burden of proof).

A petition for writ of mandamus must set out clearly, fully, and unreservedly, by direct and positive allegation, every fact necessary to show why the requested [869]*869relief is mandated. Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Crim.App.1982) (orig. proceeding) (en banc). A mandamus action requires certainty as to both pleadings and facts. Johnson v. Hughes, 663 S.W.2d 11, 12 (Tex.App.-Houston [1st Dist.] 1983, orig. proceeding). We may not deal "with disputed areas of fact in a mandamus proceeding. See West v. Solito, 563 S.W.2d 240, 245 (Tex.1978) (orig. proceeding). This “stringent test of exactness” is necessary because mandamus is an extraordinary remedy that should not issue “without careful, individual scrutiny of the facts alleged.” Fisher v. Harris Cnty. Republican Exec. Comm., 744 S.W.2d 339, 340 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding) (quoting Bush v. Vela, 535 S.W.2d 803, 805 (Tex.Civ.App.-Corpus Christi 1976, orig. proceeding)).

To that end, the relator must provide the reviewing court with a record sufficient to establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Davidson, 153 S.W.3d 490, 491 (TexApp.-Amarillo 2004, orig. proceeding); see also Tex.R.App. P. 52.3(k) (specifying required contents for appendix), 52.7(a) (providing that a relator must file with 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”). Moreover, a relator must certify that he has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record. See Tex.R.App. P. 52.3(j).

Analysis

Relator provides nothing that sufficiently demonstrates to this Court that the jury notes and responses included in the record of trial court cause number 2003-402,456 are anything other than the notes prepared by the jury and delivered by the trial court’s bailiff to Respondent and Respondent’s carefully crafted responses to those notes. In fact, as we noted in our disposition of Relator’s second petition, we have gone so far as to review the record in that original appeal and discovered that, despite the representations Relator had made to this Court in his previous filings, the reporter’s record demonstrated that the very language of the purportedly “fake” jury note found in the record is the very note read into the record in open court at the time it was received. See In re Carrington, 2014 WL 793990, at *2-3, 2014 Tex.App. LEXIS 2158, at *7-10. In response, we observed as follows:

On pages 21 through 22 of volume 6 of the reporter’s record, we see that, in the presence of the State, Relator, and defense counsel, Respondent read in open court two jury notes and the trial court’s proposed and accepted responses to them, all of which are the very same notes and responses included in the reporter’s record and all of which Relator has included in his appendix and identified as the purported “forged” jury notes and “falsified” responses. By asserting that the hypothetical “real” note was the note read in open court, Relator has grossly misrepresented to this Court the facts supporting his petition for writ of mandamus. In doing so, Relator has unequivocally failed the “stringent test of exactness” and has likewise failed to show his clear and unqualified right to the extraordinary relief he seeks, and we deny him such. See Fisher, 744 S.W.2d at 340.

Id. at *3, 2014 TexApp. LEXIS 2158 at *9-10.

Similarly, in his first petition in which he attempts to compel Respondent to provide a copy of the “real” jury note, Relator undertook a handwriting analysis to sup[870]*870port his contention that it was Respondent who wrote the notes that appear as record exhibits. See In re Carrington, 2012 WL 4464245, at *1, 2012 Tex.App. LEXIS 8197, at *1-3.

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Bluebook (online)
438 S.W.3d 867, 2014 WL 3511729, 2014 Tex. App. LEXIS 7715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-carrington-texapp-2014.