in Re Royal Edward Willard, Relator

• Court: Court of Appeals of Texas
• Decided: June 14, 2016
• Docket: 07-16-00221-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00221-CR

IN RE ROYAL EDWARD WILLARD, RELATOR

OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

June 14, 2016

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Relator, Royal Edward Willard, has filed a petition for writ of mandamus

requesting this Court to “instruct the Respondent [the Honorable Felix Klein, presiding

judge of the 154th District Court of Lamb County] to order disclosure of any ‘Brady

evidence’ contained in the personnel files of Pedro ‘Pete’ Lara, including all information

that may be used as impeachment against this witness.” We deny the petition.

First, Texas Rule of Appellate Procedure 52.3 identifies the requirements for a

petition for writ of mandamus filed in this Court. Rule 52.3(k)(1)(A) provides that the

appendix to a petition for writ of mandamus must contain “a certified or sworn copy of

any order complained of or any other document showing the matter complained of.”

Willard has appended a certified copy of an “order on Request to Reconsider Release of Witness’ Personnel Records” along with caselaw and a copy of § 143.089 of the

Texas Government Code concerning personnel files for fire fighters and police officers.

However, lacking is the motion for protective order filed by the City of Lubbock, a record

of the hearing made at the time the City’s motion for protective order was heard, and a

record of the “oral requests of both the State and the Defense” seeking reconsideration

of the trial court’s granting the protective order.

Mandamus relief is available to correct a clear abuse of discretion for which the

relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004). In determining whether the trial court clearly abused

its discretion, we may not substitute our judgment for that of the trial court. In re

Sanders, 153 S.W.3d 54, 56 (Tex. 2004). A trial court does not abuse its discretion if it

bases its decision on conflicting evidence and some evidence supports the trial court's

decision. Unifund CCR Partners v. Villa, 299 S.W. 3d 92, 97 (Tex. 2009).

Furthermore, it is especially important to note that the trial court may properly

consider everything that has occurred during the history of the litigation. See In re Le,

335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011 no pet.) (determining

whether the trial court abused its discretion in imposing “death penalty” sanctions).

Likewise, in assessing the propriety of the trial court’s ruling, this court must be able to

evaluate the trial court's ruling in light of the history of the litigation. Id. We find that the

mandamus record before this court is inadequate for the task. This court cannot make

a sound decision based on an incomplete picture. However, that is exactly what the

relator is asking this court to do by his failure to provide a sufficient mandamus record.

Id. Moreover, those seeking the extraordinary remedy of mandamus must follow the

2 applicable procedural rules. Id. Primary among these is the critical obligation to provide

the reviewing court with a complete and adequate record. See Walker v. Packer, 827

S.W.2d 833, 837 (Tex.1992) (stating that it is relator's burden to provide a record

sufficient to establish her entitlement to mandamus relief). Furthermore, it is incumbent

upon the relator to provide this court with a record that would enable the court to

determine whether the trial court abused its discretion. See id. Relator has failed to do

so. See In re Le, 335 S.W.3d at 813. (holding that the record was inadequate even

though through “the Plaintiff's efforts, [the] court ha[d] an unsworn copy of the record of

the December 6, 2010 hearing[,] but ha[d] no record of the other discovery hearings,

including the hearing on Plaintiff's second motion to compel, which resulted in a $500

sanction against relator.”). Here, the record is lacking the documents necessary to

determine whether the trial court abused its discretion. Those documents being, at the

very least, the Motion for Protective Order filed by the City, the reporter’s record of the

hearing on that motion and the hearing, if any, on the motion to reconsider the trial

court’s ruling on the protective order. Therefore, this court cannot and will not find an

abuse of discretion on an incomplete record.

For the foregoing reasons, Willard’s petition for writ of mandamus is denied.

Per Curiam

Do not publish.