in Re Patrick Dixon

• Court: Court of Appeals of Texas
• Decided: May 17, 2019
• Docket: 13-19-00227-CR
• Status: Published

Opinion

NUMBER 13-19-00227-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE PATRICK DIXON

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes Memorandum Opinion by Justice Perkes1

Relator Patrick Dixon, proceeding pro se, filed a petition for writ of mandamus in

the above cause on May 16, 2019. Relator contends that his judgment of conviction is

void because the trial court incorrectly enhanced his punishment based on a count in the

indictment that had been dismissed by the State. He argues that we should order the trial

court to set aside his judgment of conviction because the judgment is consequently void.

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

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). 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. As the party seeking relief, the relator has the burden

of providing the Court with a sufficient mandamus record to establish his right to a writ of

mandamus. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.

proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.

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

required contents for the record).

In support of his petition for writ of mandamus, relator has provided us with his

September 22, 2014 judgment of conviction in cause number 14-CR-1880-C in the 94th

District Court of Nueces County, Texas. The judgment shows that relator was convicted

pursuant to a plea bargain of aggravated assault as a repeat felony offender and punished

for a second-degree felony enhanced to a first-degree felony. The judgment shows that

2 relator was sentenced to forty years of imprisonment and the sentence was ordered to

run concurrently with cause number 13-CR-2580-C. The judgment further provides that

the State dismissed count two, “unlawful possession of firearm by felon.” The judgment

references the plea bargain as “attached” to the judgment, but that document is not

included in the record before us. Relator has not provided any other documentation in

support of his claim that the sentence was enhanced based on a dismissed count in the

indictment as opposed to a separate judgment of conviction. Accordingly, the relator has

failed to meet his burden to obtain relief. See Walker, 827 S.W.2d at 837; see generally

TEX. R. APP. P. 52.3. We deny the petition for writ of mandamus. See In re Harris, 491

S.W.3d at 334; In re McCann, 422 S.W.3d at 704.

GREGORY T. PERKES Justice

Do Not Publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 17th day of May, 2019.