in Re Emilio Chavez, Jr., Relator

• Court: Court of Appeals of Texas
• Decided: October 5, 2011
• Docket: 07-11-00369-CV
• Status: Published

Opinion

NO. 07-11-0369-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 5, 2011

______________________________

IN RE EMILIO CHAVEZ, JR., RELATOR

ORIGINAL PROCEEDING ARISING OUT OF PROCEEDINGS BEFORE THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2010-428,968; HONORABLE JIM B. DARNELL, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

By this original mandamus proceeding, Relator, Emilio Chavez, Jr., an inmate

proceeding pro se and in forma pauperis, seeks to compel the Honorable Jim Bob

Darnell to grant his motion for new trial and allow him to appeal his conviction in trial

court cause number 2010-428,968.1 For the reasons expressed herein, we deny

Relator's request.

1 According to Relator's application, he plead guilty on February 15, 2011, and, pursuant to a plea bargain, was sentenced to four years confinement. Relator contends there is "newly discovered" evidence of his actual innocence. Mandamus Standard of Review

Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues 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.@ Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d

916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief, a

relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979).

Analysis

Initially, we address Relator's failure to comply with most of the mandatory

requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. Relator's petition

does not include the following: Identity of Parties,2 Table of Contents, Index of

Authorities, Statement of the Case, Issues Presented, Statement of Facts, Certification,

and Appendix. See generally Tex. R. App. P. 52.3(a) - (k). Most importantly, Relator

did not include a certified or sworn copy of the motion for new trial of which he

complains. See id. at (k)(1)(A).

According to Relator's petition, on June 9, 2011, while at his parole review

hearing, he learned for the first time that the evidence against him was insufficient to

2 We are able to discern that his complaint is directed at the Honorable Jim Bob Darnell, Presiding Judge of the 140th District Court of Lubbock County.

2 support his conviction. He then sought permission from the trial court to appeal his

conviction. The only document filed with his petition is a letter from Judge Darnell in

which he explains that Relator entered into a plea bargain, agreed to waive his right of

appeal and executed a certification of defendant's right to appeal to that effect.3 Judge

Darnell also advised him that regardless of the certification, Relator failed to timely file a

notice of appeal from his conviction.4

Recognizing that pro se filings may be reviewed less stringently than those filed

by attorneys, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652

(1972), a party proceeding pro se must still comply with rules of procedure. See

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Even if we were to

review Relator's request for mandamus relief with patience and liberality, he has not

satisfied his burden to provide a sufficient record to enable this Court to consider his

complaint. See Walker, 827 S.W.2d at 837. Therefore, Relator has failed to establish

his entitlement to mandamus relief.

Consequently, Relator's petition for writ of mandamus is denied.

Patrick A. Pirtle Justice

3 Relator's petition was not accompanied by copies of his judgment of conviction, a certification of defendant's right of appeal, a motion for new trial or any other documents related to his request for mandamus relief. 4 A timely notice of appeal is an essential jurisdictional requirement. An out-of-time appeal may be requested by way of an application for a post-conviction writ of habeas corpus addressed to the Texas Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 11.07 (West 2011).