in Re: Billy Joe Patton ( 2006 )

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

______________________________

No. 06-06-00111-CV ______________________________





IN RE:

BILLY JOE PATTON

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

   Billy Joe Patton, acting pro se, seeks mandamus relief ⁽¹⁾ from this Court to direct the trial court, the Honorable Robert Newsom of the Eighth Judicial District Court, to do six different things: (1) respond to Patton's discovery request, (2) hold an evidentiary hearing on Patton's previous claims of ineffective assistance of counsel, (3) hold evidence suppression hearings, (4) withdraw Patton's conviction, (5) appoint defense counsel for Patton's motion for new trial, (6) provide an evidentiary hearing on Patton's trial counsel's allegedly substandard behavior at trial, and (7) comply with "Texas' full faith and credit laws."

In numerous ways, Patton's petition violates Rule 52.3 and Rule 52.7 of the Texas Rules of Appellate Procedure. Among those violations, the petition is not supported by affidavit, as required by Rule 52.3; contains no listing of parties or counsel, no table of contents, no index of authorities, no comprehensible statement of the case, and no appendix containing any order complained of, all as required by Rule 52.3; and is accompanied by no record, as required by Rule 52.7. See Tex. R. App. P. 52.3, 52.7. As a result, none of Patton's requests are properly supported by essential documentation. See In re Pappy's Sand & Gravel, Inc., No. 05-06-01427-CV, 2006 Tex. App. LEXIS 9359 (Tex. App.--Dallas Oct. 30, 2006, orig. proceeding) (without record, mandamus denied); In re Wickware, No. 12-06-00300-CV, 2006 Tex. App. LEXIS 7966 (Tex. App.--Tyler Sept.6, 2006, orig. proceeding) (without record or appendix, mandamus denied). The relator must provide, with his or her petition for writ of mandamus, a sufficient record to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Risley, No. 14-06-01005-CV, 2006 WL 3486823 (Tex.App.--Houston [14th Dist.] Dec. 5, 2006, orig. proceeding). Patton has failed to carry that burden, and that is fatal to his petition. ⁽²⁾

For the above reasons, we deny Patton's petition for writ of mandamus.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 7, 2006

Date Decided: December 8, 2006

1. On November 27, 2006, Patton filed with this Court a document styled "Notice for Mandamus Petition." We treat that filing as a petition for writ of mandamus in this case number and dispose of it herewith. Subsequently, Patton has filed another document seeking mandamus relief on various alleged grounds, at least some of which are different than those set out herein. That subsequent mandamus petition is filed, and will be disposed, under our cause number 06-06-00116-CV.

2. We note also that Patton's requests one and seven are fatally indefinite; his request four appears to be an improper effort to appeal an underlying conviction under the guise of a mandamus proceeding; and his requests two, three, five, and six appear to be untimely. To understand the lack of timeliness, note that Patton's petition for writ of mandamus, filed November 27, 2006, refers to his January 17, 2006, motion for new trial. Apparently, the judgment was signed on or before January 17, 2006. Compare those dates with Tex. R. Civ. P. 329b(c), which provides that a motion for new trial is overruled by operation of law if not determined within seventy-five days after the judgment is signed.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00111-CR

                                                ______________________________

                                    DAVID HEATH FOUSE, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 8th Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. 0820359

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                     MEMORANDUM OPINION

            David Heath Fouse has filed an appeal from six convictions.  Three are for the first- degree felony of aggravated sexual assault on a child (under fourteen—B.P.), and three are for the second-degree felony of sexual assault on a child (under seventeen—R.R. and C.J.).  A single brief has been filed to address all six appeals.  Fouse testified at trial.  He admitted that he was convicted in 1999 of the felony offense of assault on a peace officer and the state-jail felony offense of burglary of a building, and admitted having sexual intercourse with B.P. and C.J.

            This appeal is from his conviction for sexual assault on a child, on C.J.  Fouse’s appellate brief raises no issue, and makes no argument, concerning this conviction. When a point of error is inadequately briefed, we will not address it.  Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992).  This situation goes one step beyond simple inadequate briefing. Points are not merely inadequately briefed, they are not raised at all.  This Court is not the appellant’s advocate.  Although we have an interest in a just adjudication, we also have an interest in remaining impartial.  Ex parte Lowery, 840 S.W.2d 550, 552 n.1 (Tex. App.—Dallas 1992), rev’d on other grounds, 867 S.W.2d 41 (Tex. 1993).  Thus, we will not brief a defendant’s case for him or her.  Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

            Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court cannot reverse a case on a theory not presented to the trial court or raised on appeal.  Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002).  With no arguments or theories to support a request for reversal being made in connection with this conviction on appeal, there is nothing before this Court that we may review.

            We affirm the judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          April 28, 2010

Date Decided:             April 29, 2010

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