Yvonne Bracamontes v. Francisco Bracamontes

Opinion

NUMBER 13-12-00264-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE PEDRO LOMAS JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam1

Relator, Pedro Lomas Jr., pro se, filed a petition for writ of mandamus in the

above cause on April 25, 2012, asking this Court to direct the trial court to set aside and

vacate the relator’s 1993 conviction in trial court cause number 92-CR-1141-B.2 We

deny the petition for writ of mandamus as stated herein.

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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). 2 This Court affirmed relator’s conviction for aggravated sexual assault and indecency with a child in trial court cause number 92-CR-1141-B on direct appeal. See Lomas v. State, No. 13-93-00604-CR, slip. op. at 8 (Tex. App.—Corpus Christi July 20, 1995, pet. ref’d) (per curiam, not designated for publication). To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied. See id. It is relator’s burden to properly request and

show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.–Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of

mandamus must show himself entitled to the extraordinary relief he seeks.”).

In addition to other requirements, relator must include a statement of facts

supported by citations to “competent evidence included in the appendix or record,” and

must also provide “a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the appendix or record.” See generally TEX.

R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record

sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the

required contents for the appendix); R. 52.7(a) (specifying the required contents for the

record).

In this case, the petition for writ of mandamus fails to comply with the Texas

Rules of Appellate Procedure. See generally id. R. 52.3. The petition is defective

because, inter alia, it does not follow the required format for such petitions and it does

not include the required certification or certified or sworn copies of "every document that

is material to relator’s claim for relief." See id. R. 52.3(j), 52.7(a).

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

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Moreover, to

the extent that relator may be seeking post-conviction relief from an otherwise final

felony conviction, we have no authority to issue writs of mandamus in connection with

such proceedings. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2011);

Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910

S.W.2d 481, 483 (Tex. Crim. App. 1995); In re Watson, 253 S.W.3d 319, 320 (Tex.

App.—Amarillo 2008, orig. proceeding); In re Briscoe, 230 S.W.3d 196 (Tex. App.—

Houston [14th Dist.] 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 718 (Tex.

App.—Houston [1st Dist.] 2001, orig. proceeding).

Relator’s petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 27th day of April, 2012.