in Re Shannon Lee Simon

• Court: Court of Appeals of Texas
• Decided: March 26, 2009
• Docket: 14-09-00238-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed March 26, 2009

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed March 26, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00238-CR

IN RE SHANNON LEE SIMON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On March 12, 2008, relator, Shannon Lee Simon, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann '22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.  In the petition, relator requests that we compel the respondent, Loren Jackson, Harris County District Clerk, to comply with his request to forward the record from the trial of his underlying conviction for possession of a firearm by a felon.  On May 2, 2007, the trial court granted relator=s request for the appointment of counsel on the appeal of his conviction and ordered the court reporter to prepare and file the reporter=s record without charge to relator.  On October 8, 2007, relator requested that the district clerk=s office send the record to him at the Wayne Scott Unit where he is incarcerated.  In response to relator=s request, the district clerk=s office sent him notice that it was not required to accept or comply with a request for information from a person imprisoned or confined in a correctional facility.  See Tex. Gov=t Code Ann. ' 552.028 (Vernon 2004). 

On June 27, 2007, relator also requested a copy of the trial court record from his appellate counsel, Joseph Salhab.  Salhab responded that, while the trial court had entered an order for the trial record to be prepared at no cost, A[t]he rules allow me as your attorney on appeal to obtain the record from the District Clerk for the purpose of preparing your brief.@  Salhab explained, because there is no Ahybrid representation@ in Texas, he is responsible for raising any meritorious issues based on his review of the trial record.  On August 28, 2008, this court affirmed relator=s conviction.  See Simon v. State, No. 14-07-00378-CR, 2008 WL 4308426 (Tex. App.CHouston [14th Dist.] Aug. 28, 2008, pet. ref=d).  After the Court of Criminal Appeals refused relator=s petition for discretionary review, this court issued the mandate on March 12, 2009. 

A court of appeals has the authority to issue writs of mandamus against a judge of a district or county court in the court of appeals= district and all writs necessary to enforce its jurisdiction.  Tex. Gov=t Code Ann. ' 22.221(b).  For a district clerk to come within our jurisdictional reach, it must be established that the issuance of the writ of mandamus is necessary to enforce our jurisdiction.  In re Coronado, 980 S.W.2d 691, 692B93 (Tex. App.CSan Antonio 1998, orig. proceeding).  

This court affirmed relator=s underlying conviction on direct appeal, and the Texas Court of Criminal Appeals refused relator=s petition for discretionary review.  Relator has not shown the exercise of our mandamus authority against the Harris County District Clerk is necessary to enforce our jurisdiction.  Therefore, we have no authority to issue a writ of mandamus against the Harris County District Clerk. 

Because we do not have jurisdiction, the petition for writ of mandamus is ordered dismissed. 

PER CURIAM

Panel consists of Justices Frost, Brown, and Boyce. 

Do Not PublishCTex. R. App. P. 47.2(b).