in Re Curtis L. Burnett

Opinion

Opinion issued July 20, 2006

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00616-CR

IN RE CURTIS LEON BURNETT, Relator

---

Original Proceeding on Petition for Writ of Mandamus

---

MEMORANDUM OPINION

           Relator, Curtis Leon Burnett, filed a pro se petition for writ of mandamus naming the 183rd District Court as Respondent. Relator complains that there is an error in the calculation of his jail time credits and the parole release date calculated by the Board of Pardons and Paroles after a revocation hearing is incorrect. Relator requests that this Court order “a correction ...as soon as possible to... July 2006.” We deny the petition for writ of mandamus.

          We first observe that the granting of credit for jail time has historically been accomplished by post-conviction writ of habeas corpus. See Tex. Code Crim. P. Ann. art. 11.07 (Vernon Supp.2005); Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998). Even if we were to treat relator’s petition as a writ of habeas corpus, we would still have to deny relief. The courts of appeals have no original habeas corpus jurisdiction in criminal matters. Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.—San Antonio 1999, no pet.); Ex parte Denby, 627 S.W.2d 435, 435 (Tex. App.—Houston [1st Dist.] 1981, orig. proceeding); Tex. Gov’t Code Ann. § 22.221 (Vernon Supp. 2005).

          In addition, there are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). In his petition Relator (1) has not provided us with a record that shows that he made any request of the respondent to perform a nondiscretionary act that respondent refused and (2) has not included a certified or sworn copy of any order complained of or any other document showing the matter complained of. See Tex. R. App. P. 52.3(d), (j)(1)(A). We also note that Relator’s petition filed in this Court does not meet the requirements of the Texas Rules of Appellate Procedure because it does not certify that a copy was served on a respondent. See Tex. R. App. P. 9.5.

          We review pro se applications with less stringent standards than formal pleadings drafted by lawyers. However, even a pro se applicant for a writ of mandamus must show himself entitled to relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).  

           The petition for writ of mandamus is therefore denied.

PER CURIAM

Panel consists of Justices Keyes, Alcala, and Bland..