in Re Reshawn Johnson, Relator ( 2004 )

NO. 07-04-0558-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 3, 2004

______________________________



IN RE RESHAWN JOHNSON, RELATOR

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Relator Reshawn Johnson, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Bradley S. Underwood, Judge of the 364th District Court of Lubbock, to provide him with a free clerk's record and reporter's record in cause number 97-424,513-B to prepare a writ of habeas corpus. ⁽¹⁾ Under applicable principles of law, relator's petition must be denied.

By his petition, relator maintains he filed a motion requesting a free record which the trial court denied on November 4, 2004. Although he acknowledges he was provided with counsel for his trial and direct appeal, he contends that without a record he cannot prosecute allegations that his trial was "unfair and in violation of his protected rights to effective assistance of counsel, his right to due process, equal protection, and his right to confront witnesses against him," in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Mandamus is an extraordinary remedy available only in limited circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To be entitled to mandamus relief, relator must show that (1) there is no other adequate remedy at law available, and (2) the act sought to be compelled is a ministerial act. Healey v. McMeans, 884 S.W.2d. 772, 780 (Tex.Cr.App. 1994). Also, a sufficient record demonstrating relator's entitlement to the relief sought must be provided. Walker, 827 S.W.2d at 837. Relator's petition does not demonstrate that the prerequisites for mandamus have been satisfied nor has he provided any record in support thereof.

Additionally, a petition for writ of mandamus filed in this Court must comply with the mandatory requirements of Rule 52.3 of the Texas Rules of Appellate Procedure, and a pro se party must comply with applicable procedural rules. See Sedillo v. Campbell, 5 S.W.3d 824, 829 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Relator's petition is lacking in most of the requirements, and no certified or sworn copy of the order denying his request for a free record is included.

Accordingly, relator's petition for writ of mandamus is denied.

Don H. Reavis

Justice

1. Appellant was convicted of murder in cause number 97-424,513-B, and by unpublished opinion dated July 22, 1998, this Court affirmed the conviction in cause number 07-97-0471-CR.

E="font-size: 11pt"> If the jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to act is as absent as if it did not exist, and the appeal will be dismissed for lack of jurisdiction. See id. at 428, 429.

Appellate jurisdiction is invoked by giving timely and proper notice of appeal. See id. at 428. To perfect appeal from a judgment which was rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3); White, 61 S.W.3d at 428. Dismissal of an issue or the entire matter is appropriate unless the form of the notice of appeal is proper to perfect appeal as to the issue or matter. Id. TRAP 25.2(d) does not permit an appellate court to grant a motion to amend the notice of appeal if the amendment sought to be made to the notice of appeal is a jurisdictional amendment. See State v. Riewe, 13 S.W.3d 408, 413-14 (Tex.Crim.App. 2000). That is, if the original notice of appeal fails to invoke jurisdiction of the appellate court, an out-of-time amendment cannot serve to invoke jurisdiction. Id. Once jurisdiction is lost, an appellate court lacks the power to invoke any rule to thereafter obtain jurisdiction. Id. at 413; see TRAP 2.

Appellant's original Notice of Appeal did not contain one of the three allegations necessary to invoke our appellate jurisdiction over an appeal from his conviction. See TRAP 25.2(b)(3); White, 61 S.W.3d at 428. Accordingly, our jurisdiction was not invoked by the original Notice. The out-of-time amended Notice is ineffective to invoke our jurisdiction. See Riewe, 13 S.W.3d at 413-14.

We dismiss the appeal for want of jurisdiction.

Phil Johnson

Justice

Do not publish.

1. A rule of appellate procedure will be referred to as "TRAP_" hereafter.