in Re Leonard Henderson, Jr.

• Court: Court of Appeals of Texas
• Decided: September 2, 2015
• Docket: 13-15-00365-CR
• Status: Published

Opinion

NUMBER 13-15-00365-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE LEONARD HENDERSON JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion Per Curiam1

Relator, Leonard Henderson Jr., proceeding pro se, filed a petition for writ of

mandamus on August 11, 2015, through which he seeks to compel the trial court2 to

correct alleged errors in relator’s judgment of conviction. This Court reviewed relator’s

conviction for aggravated robbery on direct appeal, see Henderson v. State, 82 S.W.3d

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).

2 Relator identifies the Honorable Angelica Hernandez of the 105th District Court of Nueces County as the respondent in this original proceeding; however; the Honorable Angelica Hernandez presided over the 105th District Court until 2014. The Honorable Jack W. Pulcher now presides over that court. 750 (Tex. App.—Corpus Christi 2002, pet. ref’d), and has previously handled another

original proceeding filed by relator. See In re Henderson, No. 13-12-00152-CR, 2012 WL

761740 (Tex. App.—Corpus Christi Mar. 6, 2012, orig. proceeding) (mem. op. per curiam)

(not designated for publication). Through this original proceeding, relator contends that

the trial court: (1) failed to perform its ministerial duty by denying a motion for nunc pro

tunc judgment; (2) abused its discretion by failing to provide relator with “proper entry of

judgment”; and (3) denied relator due process by ruling unfavorably on his motion for

nunc pro tunc judgment “without him present or represented by counsel at the hearing of

said motion.”

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

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Jud. Dist. Ct. of Apps. 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

2 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. First, relator has not furnished a record or appendix in support of his

petition for writ of mandamus. See Barnes, 832 S.W.2d at 426. Second, relator has failed

to show that he lacks an adequate remedy at law for the alleged errors insofar as the

judgment at issue herein has already been subject to a direct appeal. See State ex rel.

Young, 236 S.W.3d at 210. Third, only the Texas Court of Criminal Appeals has

jurisdiction over matters related to final post-conviction felony proceedings. See TEX.

CODE CRIM. PROC. ANN. art. 11.07, § 5 (West, Westlaw through Ch. 46, 2015 R.S.); Padieu

v. Ct. of App. of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013) (orig.

proceeding); Board of Pardons & Paroles ex rel. Keene v. Ct. of Apps. of Tx., Eighth Dist.,

910 S.W.2d 481, 483 (Tex. Crim. App. 1995). Appellant may be able to obtain relief

through a post-conviction writ of habeas corpus, but the availability of such a remedy is

beyond the jurisdiction of this court. Accordingly, relator’s petition for writ of mandamus

is DENIED. See TEX. R. APP. P. 52.8(a).

Relator’s motion to suspend the rules and to “excuse any errors in form, method,

spelling, or manner of presentation and review “is likewise DENIED. We have construed

liberally relator’s pro se petition for writ of mandamus; however, we hold pro se litigants

to the same standards as licensed attorneys and require them to comply with applicable

laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85

3 (Tex. 1978); Washington v. Bank of New York, 362 S.W.3d 853, 854 (Tex. App.—Dallas

2012, no pet.).

Relator’s motion for leave to file the petition for writ of mandamus is DISMISSED

AS MOOT. The Texas Rules of Appellate Procedure no longer require the relator to file

a motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt.

PER CURIAM

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

Delivered and filed the 2nd day of September, 2015.