in Re: Dannie Lee Mitchell, Relator

Opinion

NO. 07-01-0346-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 12, 2001

______________________________

IN RE: DANNIE LEE MITCHELL

_________________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

Relator Dannie Lee Mitchell applies for a writ of mandamus/prohibition directing

respondent, Honorable Bradley Underwood, to set aside relator’s conviction in Cause No.

93-416,328 in the 364th District Court of Lubbock County, and to enter an order of

acquittal. We deny the petition.

Seeking a “writ of mandamus/prohibition,” relator claims that the indictment

underlying his conviction in Cause No. 93-416,328 in the 364th District Court of Lubbock

County was defective, he was denied counsel before and at the time he pled guilty, and

he received ineffective assistance of counsel after he pled guilty. The documents attached

to relator’s application for writ are copies of (1) an indictment of relator in Lubbock County

for robbery, enhanced by two prior felonies; (2) a judgment of guilty dated January 19, 1993, with a sentence of 25 years confinement in the TDC pursuant to a plea bargain; and

(3) an affidavit of inability to employ counsel and order signed by respondent on January

19, 1993, appointing counsel for relator in Cause No. 93-416,328 in Lubbock County.

Relator asserts that the Court of Criminal Appeals has ruled that defects in an

indictment can be challenged at trial or on appeal. He does not allege or attach

documents, however, showing whether he or his counsel challenged the indictment

pretrial, filed a motion for new trial to assert his current claims of ineffective assistance of

counsel or errors in the indictment, whether he utilized his right to appeal from his

conviction to assert the claims he now makes, or whether he has sought relief post-trial as

permitted by the Code of Criminal Procedure. See TEX . CRIM . PROC . CODE ANN . art. 28.01

(pre-trial motions to challenge form or substance of indictment), art. 44.01 (defendant has

right of appeal), art. 11.07 (writ of habeas corpus seeking relief from felony judgment

imposing sentence other than death); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.

2000) (appellant must offer proof as to ineffective assistance of counsel to prevail on such

claim); Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993) (a complaint of

ineffective assistance of counsel may be raised in a motion for new trial).

A writ of mandamus is an extraordinary remedy that will issue only to correct a clear

abuse of discretion or the violation of a duty imposed by law when there is no other

adequate remedy by law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305

(Tex. 1994). To establish an abuse of discretion, the complaining party must demonstrate

that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and

2 principles. See Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985).

It is the relator’s burden to show entitlement to the relief being requested. See generally

Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.

proceeding). Relator must file with the petition a certified sworn copy of every document

that is material to the relator’s claim for relief and that was filed in any underlying

proceeding and a properly authenticated transcript of any relevant testimony from any

underlying proceeding including any exhibits offered in evidence or a statement that no

testimony was adduced in connection with the matter about which complaint is made. TEX .

R. APP . P. 52.7(a).

Relator’s pleadings do not demonstrate that he has not had and utilized, or that he

does not now have, a remedy provided by law other than mandamus relief. Accordingly,

(1) relator’s Motion Request for Leave to File is granted; (2) relator’s Motion of Request

to Suspend Number of Copies to be Filed is granted; (3) relator’s “Writ of

Mandamus/Prohibition” is denied. TEX . R. APP . P. 52.8(a). We offer no opinion on the

merits of relator’s substantive claims as set out in his petition.

Phil Johnson Justice

Do not publish.