in Re: Eapthern Joseph Smith

• Court: Court of Appeals of Texas
• Decided: October 1, 2002
• Docket: 06-02-00142-CV
• Status: Published

Opinion

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00142-CV

IN RE: EAPTHERN JOSEPH SMITH

Original Mandamus Proceeding

Before Morriss, C.J., Grant and Ross, JJ.

Opinion by Justice Grant

O P I N I O N

Eapthern Joseph Smith has filed a Petition for Writ of Mandamus. He asks this court to order the Honorable John Miller, judge of the 102nd Judicial District Court of Red River County, to withdraw his order summarily denying Smith's motion for post-conviction DNA testing and to reconsider that motion after appointing counsel as required under Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2002).

We requested a response from the State. We have now been provided with a copy of the order by Judge Miller in which he appoints counsel as required by Article 64.01(c), and the request for DNA testing should therefore proceed as required under the statute. Under these circumstances, we conclude that the relief sought by the petition has been granted and that the petition is therefore moot.

The petition is denied as moot.

Ben Z. Grant

Justice

Date Submitted: September 30, 2002

Date Decided: October 1, 2002

Do Not Publish

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-11-00059-CV

                                                 IN RE:  RICHARD M. KING, JR.

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Complaining of a number of things, Richard M. King, Jr., seeks mandamus relief against Judge Scott McDowell, of the 62nd Judicial District Court.  King, previously determined to be a “vexatious litigant,” was barred by the then Judge Jim Lovett of the 6th Judicial District Court from “filing anything under any law, statute, rule or authority . . ., without first obtaining the permission of the presiding judge of the 6th District Court.”  A suit filed by King “against Marvin Ann Patterson and her deputy clerks for withholding . . . evidence . . . that would result in the reversal of King’s wrongful conviction,” was dismissed by Judge McDowell.  King claims that he “filed an application for writ of habeas corpus . . . in the 6th Judicial District Court in Lamar County, Texas,” complaining of Patterson’s alleged admission to possessing “the evidence in question,” and received a response from Judge McDowell “stating that one ground has ‘been litigated’ and making no mention of the other ground.”  King, believing that Judge McDowell relied on the order issued by Judge Lovett, claimed that the court did not file or consider the application for writ of habeas corpus.  He asks this Court to order Judge McDowell to “present the Application for Writ of Habeas Corpus in it’s [sic] unedited form to the 6th District Court.”

            To be entitled to mandamus relief, King must show that he has no adequate remedy at law to redress the alleged harm and that he seeks to compel an act that is ministerial, not discretionary or involving a judicial decision.  State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984).  An act is ministerial if it constitutes a duty clearly fixed and required by law.  In re Birdwell, 224 S.W.3d 864, 865 (Tex. App.—Waco 2007, orig. proceeding).

            Due to the nature of this remedy, it is King’s burden to properly request and show entitlement to the mandamus relief.  Tex. R. App. P. 52.7; Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

            King had the obligation to provide us with evidence in support of his claim that he is entitled to mandamus relief.  No portion of any clerk’s record or reporter’s record has been filed with this Court.  The absence of a mandamus record prevents us from evaluating the circumstances of this case and, thus, the merits of King’s complaints.  See Tex. R. App. P. 52.7; Barnes, 832 S.W.2d at 426.

            We deny the petition for writ of mandamus.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          June 9, 2011   

Date Decided:             June 10, 2011