In Re Robert Nicholas Simmons v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 26, 2023
• Docket: 13-23-00217-CR
• Status: Published

Opinion

NUMBER 13-23-00217-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE ROBERT NICHOLAS SIMMONS

On Petition for Writs of Mandamus and Prohibition.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Silva and Peña Memorandum Opinion by Justice Silva1

Relator Robert Nicholas Simmons, proceeding pro se, has filed an “Emergency

Extraordinary Writ Application for Writ [of] Mandamus Requesting [Prohibition] Action,” a

“Motion for Leave to File [an] Extraordinary Writ,” and a “Memorandum of Law” in the

above-referenced cause number. In this original proceeding, Simmons raises numerous

complaints against his court-appointed attorney, the district attorney, and the Clerk of this

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. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). Court. Simmons’s complaints appear to arise from his conviction in trial court cause

number 17FC-3271H in the 347th District Court of Nueces County, Texas, and the direct

appeal of that conviction currently pending in our appellate cause number 13-22-00322-

CR, Robert Nicholas Simmons v. The State of Texas.

In a criminal case, to be entitled to mandamus relief, the relator must establish

both that the act sought to be compelled is a ministerial act not involving a discretionary

or judicial decision and that there is no adequate remedy at law to redress the alleged

harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);

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

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) (orig. proceeding).

To be entitled to relief by writ of prohibition, the relator must meet these same

requirements. See In re Medina, 475 S.W.3d 291, 297 (Tex. Crim. App. 2015) (orig.

proceeding). That is, the relator must show that the act sought to be prohibited is not the

result of a judicial or discretionary decision and that the relator lacks an adequate remedy

at law. See id. at 298. However, a writ of prohibition is a “creature of limited purpose.” In

re Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig. proceeding). In this

regard, a writ of “[p]rohibition is necessarily directed at anticipated future action.” In re

Smith, No. WR-93,354-02, 2022 WL 17480102, at *2, __ S.W.3d __, __ (Tex. Crim. App.

Dec. 7, 2022) (orig. proceeding).

2 Article V, § 6 of the Texas Constitution delineates the appellate jurisdiction of the

courts of appeals, and states that the courts of appeals “shall have such other jurisdiction,

original and appellate, as may be prescribed by law.” TEX. CONST. art. V, § 6(a); see

Powell v. Hocker, 516 S.W.3d 488, 491 (Tex. Crim. App. 2017) (orig. proceeding). The

main source of original jurisdiction for the courts of appeals is provided by § 22.221 of the

Texas Government Code. See TEX. GOV’T CODE ANN. § 22.221; In re Cook, 394 S.W.3d

668, 671 (Tex. App.—Tyler 2012, orig. proceeding). In pertinent part, this section provides

that the intermediate appellate courts may issue writs of mandamus against specified

judges in our district and “all other writs necessary to enforce the jurisdiction of the court.”

TEX. GOV’T CODE ANN. § 22.221(a), (b); see In re State ex rel. Best, 616 S.W.3d 594, 599

& n.3 (Tex. Crim. App. 2021) (orig. proceeding).

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

mandamus and prohibition, is of the opinion that we lack jurisdiction over Simmons’s

claims. First, with regard to Simmons’s claims against his court-appointed counsel and

the district attorney, Simmons has not established that the requested relief is necessary

to enforce our jurisdiction in his pending appeal. See TEX. GOV’T CODE ANN. § 22.221(a).

That said, in the interests of justice, we will file copies of Simmons’s pleadings in this

original proceeding separately in the appeal pending in 13-22-00322-CR for further

consideration and additional review in that cause. Second, with regard to Simmons’s

claims against the Clerk of this Court, we conclude that his original proceeding was, in

part, improvidently filed with this Court, and accordingly, we are forwarding a copy of

3 Simmons’s pleadings and this memorandum opinion to the Texas Court of Criminal

Appeals for its review.

Based on the foregoing, we dismiss the petition for writs of mandamus and

prohibition for want of jurisdiction. Further, as previously noted, Simmons filed a motion

for leave to file this original proceeding. Although a motion for leave is required to file

original proceedings in the Texas Court of Criminal Appeals, see TEX. R. APP. P. 72.1, a

motion for leave is not required to file original proceedings in the intermediate appellate

courts. See id. R. 52 & cmt.; In re Fields, 619 S.W.3d 394, 394 (Tex. App.—Waco 2021,

orig. proceeding) (per curiam). We thus dismiss the motion for leave as moot.

CLARISSA SILVA Justice

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

Delivered and filed on the 26th day of May, 2023.