in Re Donald Wayne Herod

• Court: Court of Appeals of Texas
• Decided: August 8, 2017
• Docket: 01-17-00585-CR
• Status: Published

Opinion

Opinion issued August 8, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00585-CR ——————————— IN RE DONALD WAYNE HEROD, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION Relator, Donald Wayne Herod, has filed a pro se petition for a writ of

mandamus seeking to compel the respondent district judge to rule on his motion for

one free copy of the trial transcript in the underlying criminal proceeding.1

1 The underlying case is The State of Texas v. Donald Wayne Herod, Cause No. 1152281, in the 339th District Court, Harris County, Texas, the Honorable Maria T. Jackson presiding. This Court affirmed relator’s conviction under that cause number for the third-degree felony offense of driving while intoxicated—third offense. Donald Wayne Herod v. State, No. 01-08-00908-CR, 2010 WL 1981577, at *5 (Tex. App.—Houston [1st Dist.] May 13, 2010, pet. ref’d) (mem. op.) (not designated for publication). We deny the petition for writ of mandamus, which is procedurally defective.

See TEX. R. APP. P. 52.8(a), (d); see also id. 52.3(k)(1)(A) (stating that relator is

required to file “a certified or sworn copy of any . . . document showing the matter

complained of”); id. 52.7(a)(1) (stating that 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”); In re Smith, 263 S.W.3d 93, 96 (Tex.

App.—Houston [1st Dist.] 2006, orig. proceeding) (party seeking mandamus relief

with regard to ministerial duty to rule on motion must show that (1) the trial court

had a legal duty to act, (2) there was a demand for performance, and (3) there was a

refusal to act). Relator may write to the Harris County District Clerk to request the

cost info for a copy of the reporter’s record for his trial. See In re Bonilla, 424

S.W.3d 528, 534 (Tex. Crim. App. 2014); see also In re Artiga, No. WR-84,603-01,

2016 WL 3094322, at *2 (Tex. Crim. App. May 25, 2016) (Johnson, J., concurring)

(not designated for publication).

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

Do not publish.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