in Re Mickey Wayne Boswell

• Court: Court of Appeals of Texas
• Decided: November 12, 2019
• Docket: 13-19-00574-CR
• Status: Published

Opinion

NUMBER 13-19-00574-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

IN RE MICKEY WAYNE BOSWELL ____________________________________________________________

On Petition for Writ of Mandamus. ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Tijerina Memorandum Opinion by Chief Justice Contreras1

Relator Mickey Wayne Boswell, proceeding pro se, filed a petition for writ of

mandamus in the above cause on November 8, 2019. 2 Through this original proceeding,

relator seeks to compel the trial court to “expand the record” and “reinstate” relator’s

petition for writ of habeas corpus under article 11.07 of the Texas Code of Criminal

1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”). 2 Relator also filed a motion for leave to file his petition for writ of mandamus. We dismiss relator’s motion for leave 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. Procedure. 3 See TEX. CODE CRIM. PROC. ANN. art. 11.07. We deny the petition for writ

of mandamus.

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 purely ministerial act not involving a discretionary or judicial decision. In re Harris,

491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422

S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet

both requirements, then the petition for writ of mandamus should be denied. State ex

rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007).

It is the 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, 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. The relator must furnish an appendix or record

sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the

required contents for the appendix); id. R. 52.7(a) (specifying the required contents for

the record).

3 Relator’s conviction in the underlying case was affirmed on direct appeal. See Boswell v. State,

Nos. 13-11-00785-CR, 13-11-00786-CR, & 13-11-00791-CR, 2015 WL 5655823, at *1 (Tex. App.—Corpus Christi–Edinburg Sept. 24, 2015, pet. ref’d) (mem. op., not designated for publication).

2 Relator’s petition for writ of mandamus fails to meet the foregoing requirements.

In short, the record in this case is insufficient to determine whether relator’s application

for writ of habeas corpus remains pending or whether relator seeks to pursue a separate

application for writ of habeas corpus in the future. This distinction is critical because it

determines whether this Court has jurisdiction over the petition for writ of mandamus.

See In re Mendez, 523 S.W.3d 164, 165 (Tex. App.—Dallas 2016, orig. proceeding);

compare Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)

(orig. proceeding) (holding that the court of criminal appeals has exclusive jurisdiction to

grant post-conviction relief by writ of habeas corpus) with Padieu v. Court of Appeals of

Tex., Fifth Dist., 392 S.W.3d 115, 118 (Tex. Crim. App. 2013) (orig. proceeding)

(delineating the limited jurisdiction possessed by intermediate appellate courts pertaining

to article 11.07 applications for writs of habeas corpus). We note that if an applicant

finds it necessary to complain about the processing of an article 11.07 application for writ

of habeas corpus, the applicant may seek mandamus relief directly from the Texas Court

of Criminal Appeals. See, e.g., Benson v. Dist. Clerk, 331 S.W.3d 431, 432–33 (Tex.

Crim. App. 2011) (per curiam); Gibson v. Dallas Cty. Dist. Clerk, 275 S.W.3d 491, 491–

92 (Tex. Crim. App. 2009) (per curiam); In re Watson, 253 S.W.3d 319, 320 (Tex. App.—

Amarillo 2008, orig. proceeding); see also In re Provost, No. 14-19-00374-CR, 2019 WL

2144778, at *1 (Tex. App.—Houston [14th Dist.] May 16, 2019, orig. proceeding) (mem.

op., not designated for publication).

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. Accordingly, we deny the petition for writ of mandamus and all relief

requested therein.

3 DORI CONTRERAS Chief Justice

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

Delivered and filed the 12th day of November, 2019.