in Re: Gilbert Fielding

• Court: Court of Appeals of Texas
• Decided: September 12, 2012
• Docket: 08-12-00269-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ 08-12-00269-CR § AN ORIGINAL PROCEEDING IN RE: GILBERT FIELDING § IN MANDAMUS §

§

MEMORANDUM OPINION

Gilbert Fielding, Relator, has filed a pro se petition seeking mandamus relief from the

alleged failure of the Honorable Mary Ann Bramblett, Judge of the 41st District Court, to act upon

his March 8, 2012 motion to appoint counsel to aid him in filing a motion for DNA testing

pursuant to chapter 64 of the Texas Code of Criminal Procedure. TEX.CODE

CRIM.PROC.ANN. art. 64.01(c)(West Supp. 2012). To obtain 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 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). Relator has failed to establish his entitlement to mandamus relief.

Relator argues that Judge Bramblett abused her discretion by not acting upon his motion

and appointing counsel to assist him. However, Relator has not shown that Judge Bramblett

abused her discretion. Among other things, Relator failed to provide us with “a certified or sworn

copy of every document that is material to the relator’s claim for relief . . . .” See TEX.R.APP.P. 52.7(a)(1). Indeed, Relator did not provide us with a copy of the motion, whether sworn,

certified, or otherwise. Moreover, Relator not only failed to certify that every factual statement in

his petition is supported by competent evidence in an appendix or record, but he also failed to

furnish an appendix or record with his petition. See TEX.R.APP.P. 52.3(j), (k), 52.7.

Based on the absence of a record, we conclude that Relator is not entitled to mandamus

relief. Accordingly, the petition is denied. See TEX.R.APP.P. 52.8(a). Relator’s motion for

leave to proceed in forma pauperis is denied as moot.

September 12, 2012 CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)