in Re: Joseph Smith

Opinion

DENY; and Opinion Filed July 12, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00481-CV

IN RE JOSEPH SMITH, Relator

Original Proceeding from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-80590-2016

MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Brown Before the Court is relator’s motion to reinstate writ of mandamus, which we construe as

a motion for rehearing. We deny the motion for rehearing. On our own motion, we withdraw our

prior opinion in this case, substitute this opinion in its place, and deny relator’s petition for writ of

mandamus. The following is now the opinion of the Court.

Relator Joseph Smith’s appeal of his December 2016 convictions is pending in this Court

in cause number 05-17-00034-CR (“the appeal”). On December 22, 2017, Smith filed a motion

in the appeal seeking an order compelling the trial court to provide him a copy of the reporter’s

record for a competency hearing held on August 29, 2016. This Court ordered the official court

reporter of the 366th Judicial District Court to provide Smith’s counsel with “a paper copy of a

transcript of the August 29, 2016 competency hearing” and ordered Smith’s counsel to send relator

a copy of the transcript after receipt. The transcript and exhibits on DVD were filed with the Court

in the appeal on March 8, 2018. By order dated March 15, 2018 in the appeal, this Court ordered Smith’s counsel to provide Smith with “a copy of the supplemental reporter’s record of the August

29, 2016 competency hearing.”

In this original proceeding, Smith complains that, although he was provided with a DVD

of the State’s exhibits 1 and 1A from the competency hearing, he cannot review those exhibits

because he is incarcerated and does not have access to a DVD player. State’s exhibits 1 and 1A

consist of over 700 mp3 files. Due to the size of those files, the court reporter burned the files to

a disk and filed the disk with this Court under separate cover from the transcript of the competency

hearing. The transcript of the hearing shows that the exhibits were offered and admitted in disk

form and were not played for the trial court. Smith contends that he cannot prepare a proper pro

se response to counsel’s Anders brief in the appeal without reviewing the State’s exhibits. Smith

seeks a writ of mandamus directing the trial court to either issue a bench warrant to permit Smith

to conduct an in camera review of the State’s exhibits or provide Smith with paper copies of the

exhibits

To establish a right to mandamus relief in a criminal case, the relator must show that the

trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.

Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). The trial court provided

relator with a duplicate copy of the appellate record. Relator has not established that the trial court

has a ministerial duty to prepare a transcription of audio files that were not played for the trial

court at the hearing and were not transcribed by the court reporter. The trial court provided State’s

exhibits 1 and 1A to relator in the format in which they were admitted at trial and in the format in

which they were filed in the appeal to this Court. In other words, relator has received a duplicate

copy of the record, including the State’s exhibits. A trial court has a duty to provide an indigent

defendant with an adequate record on appeal. Newman v. State, 937 S.W.2d 1, 3 (Tex. Crim. App.

1996) (en banc) (citing Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim. App. 1986) (en banc)).

–2– The trial court has fulfilled its duty here by providing relator with a duplicate copy of the record.

Accordingly, we deny relator’s petition for writ of mandamus.

In an Anders case, it is appointed counsel’s burden, not the trial court’s burden, to “take

concrete measures to initiate and facilitate the process of actuating his client’s right to review the

appellate record, if that is what his client wishes.” Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim.

App. 2014). We lack writ jurisdiction over appointed counsel regarding this issue because our

jurisdiction over the appeal is not in jeopardy by counsel’s actions. See TEX. GOV’T CODE § 22.221.

We, therefore, express no opinion in this original proceeding regarding whether counsel fulfilled

her burden to provide relator with a readily accessible record when she provided relator with the

State’s exhibits in a digital format. See, e.g., Ramos v. State, No. 07–13–00447–CR, 2014 WL

4930794, at *1–2 (Tex. App.—Amarillo Sept. 29, 2014, order) (not designated for publication)

(ordering appointed counsel to provide a paper copy of the appellate record in an Anders appeal

when appellant does not have access to a computer); see also In re L.V., No. 07–15–00315–CV,

2015 WL 6940113, at *2 (Tex. App.—Amarillo Nov. 9, 2015, order) (requiring appointed counsel

in an Anders appeal of a parental termination order to provide appellant with a readily accessible

copy of the appellate record).

/Ada Brown/ ADA BROWN JUSTICE

180481F.P05

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