in Re Eugene McKinley Brister

• Court: Court of Appeals of Texas
• Decided: January 3, 2013
• Docket: 13-12-00780-CR
• Status: Published

Opinion

NUMBERS 13-12-00780-CR & 13-12-00781-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE EUGENE McKINLEY BRISTER

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion Per Curiam1

Relator, Eugene McKinley Brister, proceeding pro se, filed a petition for writ of

mandamus on December 28, 2012, through which he seeks to compel the Honorable

Joseph P. Kelly, Presiding Judge of the 24th Judicial District Court of DeWitt County, to

grant jail time credit in trial court cause number 11-01-11,398, filed in our cause number

13-12-00780-CR, and trial court case number 11-01-11,399, filed in our cause

number13-12-00781-CR.

To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied. See id. It is relator’s burden to properly request and

show entitlement to mandamus relief. 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.”). In addition

to other requirements, relator must include a statement of facts supported by citations to

“competent evidence included in the appendix or record,” and must also provide “a clear

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

and to the appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is

clear that relator must furnish an appendix or record sufficient to support the claim for

mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix);

R. 52.7(a) (specifying the required contents for the record).

The Court, having examined and fully considered the petition for writ of

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly,

relator’s petition for writ of mandamus in each of these causes is denied. See TEX. R.

APP. P. 52.8(a).

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

Delivered and filed the 3rd day of January, 2013.