in Re the State of Texas Ex Rel. Reid McCain

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00119-CR

IN RE THE STATE OF TEXAS EX REL. REID MCCAIN

Original Mandamus Proceeding

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Relator, Reid McCain, the criminal district attorney for Harrison County, has filed a

petition for a writ of mandamus asking this Court to direct the Honorable Brad Morin, presiding

judge of the 71st Judicial District Court of Harrison County, Texas, to rescind his order granting

the Real Party in Interest’s motion to have copies of the child victim’s recorded interview at the

Harrison County Child Advocacy Center (CAC) provided to the RPI and his expert. Because

McCain failed to provide us with a sufficient record to establish his right to mandamus relief, we

deny the mandamus petition.

Mandamus will issue “only when the mandamus record establishes (1) a clear abuse of

discretion . . . , and (2) the absence of a clear and adequate remedy at law.” In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878

S.W.2d 131 (Tex. 1994) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding)). “It is the relator’s burden to provide this Court with a

sufficient record to establish his or her right to mandamus relief.” Id. (citing Walker, 827

S.W.2d at 839–40; In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—

Texarkana 2006, orig. proceeding)); see TEX. R. APP. P. 52.3, 52.7(a).

Our appellate rules require that the appendix contain “a certified or sworn copy of any

order complained of, or any other document showing the matter complained of,” TEX. R. APP. P.

52.3(k)(1)(A), and that the record contain “a certified or sworn copy of every document that is

material to the relator’s claim and that was filed in any underlying proceeding,” TEX. R. APP. P.

52.7(a)(1). In addition, the rules require that the record contain “a properly authenticated

2 transcript of any relevant testimony from any underlying proceeding, including any exhibits

offered in evidence, or a statement that no testimony was adduced in connection with the matter

complained.” TEX. R. APP. P. 52.7(a)(2).1

McCain has attached a certification that states, in part, “I, the undersigned, certify that the

attached documents in the appendices are true and correct copies of document retrieved from the

district clerk, or a true and correct copy of the reporter’s record if received in time for this filing

from the court reporter.” However, “[t]he affidavit ‘must affirmatively show it is based on the

personal knowledge of the affiant,’” and it “is insufficient unless the statements in it are direct

and unequivocal and perjury can be assigned to them.” In re Henderson, No. 06-15-00034-CR,

2015 WL 13522812, at *1 (Tex. App.—Texarkana Mar. 10, 2015, orig. proceeding) (mem. op.,

not designated for publication)2 (quoting In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas

2008, orig. proceeding)). Only “[d]ocuments that are attached to a properly prepared affidavit

are sworn copies.” Id. (quoting In re Butler, 270 S.W.3d at 759). McCain’s affidavit does not

show that the facts stated in it are true and that they are within his personal knowledge, and it

does not state that all of the documents in the appendix were filed in the trial court.3

McCain states that a hearing was held on September 1, 2022, in which the Respondent

ordered him to give a copy of the recorded CAC interview to RPI’s counsel. However, McCain

1 The petition for a writ of mandamus was properly certified in accordance with Rule 52.3(j) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(j). 2 “Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).

3 Some of the documents in the appendix contain file marks. However, some do not, such as a document purporting to be the affidavit of Taylor Prior. We also note that that document does not meet the requirements of an affidavit. 3 did not include a certified or sworn copy of the order in his appendix. See TEX. R. APP. P.

52.3(k)(1)(A). He also did not include an authenticated transcript of the September 1 hearing.

See TEX. R. APP. P. 52.7(a)(2). In addition, McCain did not include a sworn or certified copy of

the motion filed by RPI that requested the trial court to enter an order. See TEX. R. APP. P.

52.7(a)(1).

“‘Because the record in a mandamus proceeding is assembled by the parties,’ we must

‘strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the

mandamus record.’” In re Wylie, No. 06-21-00092-CR, 2021 WL 3889433, at *1 (Tex. App.—

Texarkana Sept. 1, 2021, orig. proceeding) (mem. op., not designated for publication) (quoting

In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.—Dallas Mar. 22, 2019,

orig. proceeding) (mem. op.)). Here, Relator has failed to provide us with a sufficient record

because the documents attached to the petition do not comply with Rules 52.3(k)(1)(A),

52.7(a)(1), or 52.7(a)(2).

For that reason, we deny the petition for a writ of mandamus.

Josh R. Morriss, III Chief Justice

Date Submitted: September 8, 2022 Date Decided: September 9, 2022

Do Not Publish