in Re Justin L. Venegas

• Court: Court of Appeals of Texas
• Decided: December 1, 2014
• Docket: 13-14-00673-CR
• Status: Published

Opinion

NUMBER 13-14-00673-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JUSTIN L. VENEGAS

On Petition for Writ of Mandamus.

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

On November 25, 2014, relator Justin L. Venegas, proceeding pro se, filed a

petition for writ of mandamus seeking relief against respondent Patsy Perez, the District

Clerk of Nueces County, Texas, to correct relator’s judgment of conviction and to transmit

the correction to the Texas Department of Criminal Justice.

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.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). I. STANDARD OF REVIEW

To be entitled to mandamus relief, the 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 Jud. Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).

If the relator fails to meet both of these requirements, then the petition for writ of

mandamus should be denied. See id. In addition to other requirements, the 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 the relator must furnish

an appendix or record that is 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).

II. ANALYSIS

Appellant was found guilty of burglary of a habitation with intent to commit assault,

a second-degree felony and was assessed punishment at ten years’ confinement. See

TEX. PEN. CODE ANN. § 30.02(a)(1), (c) (West, Westlaw through 2013 3d C.S.). On

appeal, the State conceded two errors in the judgment: (1) the judgment incorrectly

provided that the trial court's verdict was “Burglary of A Habitation With The Commission

Of A Felony” whereas appellant was convicted of the lesser offense of burglary of a

habitation with intent to commit assault; and (2) the judgment incorrectly provided that

appellant pleaded true to the first enhancement paragraph in the charge. See Venegas

2 v. State, No. 13-07-00396-CR, 2009 WL 4458710, at *1 (Tex. App.—Corpus Christi Dec.

3, 2009, pet. ref’d). This Court modified the judgment to recite that appellant was

convicted of the offense of burglary of a habitation with intent to commit assault, a second-

degree felony, and to remove the word “True” as appellant's plea to the first enhancement

paragraph, and we affirmed the judgment as modified. See id. at *6.

This Court does not have mandamus jurisdiction over clerks unless it is shown that

issuance of the writ is necessary to enforce our jurisdiction. See TEX. GOV'T CODE ANN.

§ 22.221(a), (b) (West, Westlaw through 2013 3d C.S.); In re Smith, 263 S.W.3d 93, 95

(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding); In re Washington, 7 S.W.3d 181,

182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding); In re Coronado, 980 S.W.2d

691, 692 (Tex. App.—San Antonio 1998, orig. proceeding). For instance, mandamus

relief is appropriate when a clerk fails to file and forward a notice of appeal to the

appropriate court of appeals. In re Smith, 270 S.W.3d 783, 785 (Tex. App.—Waco 2008,

orig. proceeding); In re Smith, 263 S.W.3d at 95–96; In re Washington, 7 S.W.3d at 182;

see also Aranda v. Dist. Clerk, 207 S.W.3d 785, 786–87 (Tex. Crim. App. 2006) (orig.

proceeding) (per curiam) (granting mandamus relief where the district clerk failed to file a

post-conviction habeas application). Relator has not shown that issuance of the writ is

necessary to enforce our jurisdiction. We have modified the judgment at issue, and

nothing in the record before us indicates that the District Clerk has failed to follow our

mandate.

3 III. CONCLUSION

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

is of the opinion that we lack jurisdiction to consider this matter. Accordingly, the petition

for writ of mandamus is DISMISSED for want of jurisdiction. See TEX. R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 1st day of December, 2014.