in Re Thomas Darrell Cross Jr.

• Court: Court of Appeals of Texas
• Decided: August 20, 2014
• Docket: 09-14-00289-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00289-CR ____________________

IN RE THOMAS DARRELL CROSS JR.

_______________________________________________________ ______________

Original Proceeding ________________________________________________________ _____________

MEMORANDUM OPINION

Thomas Darrell Cross Jr. seeks mandamus relief against the district clerk of

Liberty County, the official court reporter for the 75th District Court of Liberty

County, and the judge of the 75th District Court of Liberty County, in connection

with his effort to obtain copies of a jury charge, a verdict form, and the reporter’s

record of a trial that ended in a mistrial.

After the jury in Cross’s first trial failed to reach a verdict on guilt or

innocence, the State tried the case to a new jury, Cross was convicted, and his

conviction was affirmed on appeal. See Cross v. State, No. 09-11-00406-CR, 2012

WL 6643832, at *5 (Tex. App.—Beaumont Dec. 19, 2012, pet. ref’d) (mem. op.,

not designated for publication). Neither of the issues Cross raised in that appeal

concerned the first trial. Id. at *1. After our mandate issued, Cross asked the

district clerk and the court reporter for records from the first trial. In his mandamus

petition, Cross argues that the requested records are relevant to double jeopardy

issues, presumably for use in preparing an application for a post-conviction writ of

habeas corpus.

In an estimate dated October 7, 2013, the court reporter informed Cross that

the requested record would cost $1,459.50 to prepare. Cross contends that on June

2, 2014, he submitted his objections to the fee and asked the trial court to resolve

the dispute, but the trial court has not responded to his request. See Tex. Gov’t

Code Ann. § 52.047(b) (West 2013) (“If an objection is made to the amount of the

transcript fee, the judge shall determine a reasonable fee, taking into consideration

the difficulty and technicality of the material to be transcribed and any time

constraints imposed by the person requesting the transcript.”). Cross proposed

paying ten cents per page or for the court reporter to loan the record to him for

ninety days.

A trial court’s duty to resolve a transcript fee dispute under section

52.047(b) of the Texas Government Code may be compelled. See In re Slaughter,

No. 02-13-00122-CV, 2013 WL 1960624, at *3 (Tex. App.—Fort Worth May 14,

2013, orig. proceeding) (mem. op.). In this case, however, Cross is asking this

Court to require the trial court to either set the transcript fee at ten cents per page or

make a copy of the record available for his use. The trial court has discretion to

deny a request for a free record for use in preparing a post-conviction writ

application. See In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio

1998, orig. proceeding). The mandamus record contains no evidence that ten cents

per page would be a reasonable fee for the record, considering the difficulty and

technicality of the material. See Tex. Gov’t Code Ann. § 52.047(b). Cross has not

shown that he is entitled to the relief he requested in his mandamus petition. See

Tex. R. App. P. 52.8(a).

Cross also seeks mandamus relief from the court reporter and the district

clerk, but neither individual falls within the identified officials within our general

mandamus jurisdiction. See Tex. Gov’t Code Ann. § 22.221(b) (West 2004). Our

mandate issued in Cross’s appeal and the requested relief does not concern the

enforcement of our appellate jurisdiction. Id. § 22.221(a). We lack jurisdiction to

issue a writ of mandamus to the district clerk or the court reporter in this

proceeding. The petition for writ of mandamus is denied.

PETITION DENIED.

PER CURIAM

Submitted on August 4, 2014 Opinion Delivered August 20, 2014 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.