in Re: David Herrera Barrera

Opinion

NUMBER 13-10-00323-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DAVID HERRERA BARRERA

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela Per Curiam Memorandum Opinion1

Relator, David Herrera Barrera, pro se, filed a “Motion for Leave to File Petition for

Writ of Mandamus” and a petition for writ of mandamus in the above cause on June 9,

2010.2 We dismiss relator's motion for leave to file the petition for writ of mandamus as

moot because the Texas Rules of Appellate Procedure no longer require the relator to file

a motion for leave to file an original proceeding. See generally TEX . R. APP. P. 52 & cmt.

1 See T EX . R. A PP . P. 52.8(d) (“W hen granting relief, the court m ust hand down an opinion as in any other case.”); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions).

2 This Court previously affirm ed relator’s conviction for aggravated assault against a public servant. See Barrera v. State, No. 13-09-00221-CR, 2010 Tex. App. LEXIS 2957, at *2 (Tex. App.–Corpus Christi Apr. 22, 2010, no pet.) (m em . op., not designated for publication). We deny the petition for writ of mandamus as stated herein.

Mandamus relief may be granted if the relator shows that: (1) the act sought to be

compelled is purely ministerial; and (2) there is no adequate remedy at law. See Deleon

v. Dist. Clerk, 187 S.W.3d 473, 474 (Tex. Crim. App. 2006) (orig. proceeding). The relator

must have a “clear right” to the relief sought and the merits of the relief sought must be

“beyond dispute.” See id. “The requirement of a clear legal right necessitates that the law

plainly describes the duty to be performed such that there is no room for the exercise of

discretion.” See id.

It is the relator's burden to provide this Court with a sufficient petition and record to

establish his right to mandamus relief. See generally TEX . R. APP. P. 52. Specifically, for

instance, the relator must file an appendix with the petition for writ of mandamus, and the

appendix must include, inter alia, a certified or sworn copy of any order complained of, or

any other document showing the matter complained of. See id. 52.3(k). The relator must

also file a record including 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,” 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 complained.” See id. 52.7(a). Further, relator must file a

certification with the petition for the petition for writ of mandamus stating that every factual

statement in the petition is supported by competent evidence included in the appendix or

record. See id. 52.3(j). Finally, the petition for writ of mandamus must contain a “clear and

concise argument for the contentions made, with appropriate citations to authorities and

to the appendix or record.” See id. 52.3(h).

2 In the instant case, relator has failed to meet these requirements and has thus failed

to provide this Court with a petition and record sufficient to establish his right to mandamus

relief. Accordingly, the petition for writ of mandamus is DENIED. See id. 52.8(a).

PER CURIAM

Do not publish. See TEX . R. APP. P. 47.2(b).

Delivered and filed the 14th day of June, 2010.