in Re Justino Frutis, Relator

Opinion

NO. 07-11-00327-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 31, 2011

IN RE JUSTINO FRUTIS, RELATOR

Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.1

MEMORANDUM OPINION

Appearing pro se, relator Justino Frutis, a prison inmate, has filed a petition for

writ of mandamus. Finding we lack jurisdiction, we will dismiss the petition.

In his petition, relator asserts the 137th District Court of Lubbock County lacked

subject-matter jurisdiction to convict him on April 5, 2011, of aggravated assault-serious

bodily injury allegedly occurring on September 7, 1999, because the prosecution was

barred by limitations. In the prayer of his petition, relator asks that we find the trial court

lacked subject-matter jurisdiction, order his conviction “dismissed,” and notify prison

officials so that his time record may be reformed.2 We will dismiss relator’s petition for

want of jurisdiction.

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. 2 Relator’s petition recites that the sentence he received from his April 2011 conviction runs concurrent with a 25-year sentence on another offense. Relator has not filed a proper record or appendix with his petition. In an original

mandamus proceeding, the petition must be accompanied by a certified or sworn copy

of every document that is material to a relator’s claim for relief and that was filed in any

underlying proceeding. See Tex. R. App. P. 52.7(a)(1). The only supporting document

relator filed is an unsworn copy of the front page of a judgment. Additionally, relator’s

petition states facts not supported by evidence included in an appendix or record. A

relator’s burden on mandamus includes meeting the requirement that “[e]very statement

of fact in the petition [is] supported by citation to competent evidence included in the

appendix or record.” Tex. R. App. P. 52.3(g). In short, a relator must supply a record

sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833,

837 (Tex. 1992).

While relator’s failure to comply with Appellate Rule 52 would ordinarily require

denial of his petition, we must dispose of this proceeding on a different ground. The

substance of the relief relator seeks by mandamus is a request for post-conviction

habeas corpus relief. The Texas Court of Criminal Appeals has exclusive jurisdiction

over a post-conviction writ of habeas corpus challenging a final felony conviction. Tex.

Code Crim. Proc. Ann. art. 11.07 § 3 (West Supp. 2010). We accordingly dismiss

relator’s petition for want of jurisdiction.

Per Curiam