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in Re Rodger Wayne Mitchell, Relator ( 2007 )


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  •                                    NO. 07-07-0355-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 3, 2007
______________________________
IN RE RODGER WAYNE MITCHELL, RELATOR
_________________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Relator Rodger Wayne Mitchell, appearing pro se, filed a petition seeking relief by
writ of mandamus. We will deny his petition.
According to relator’s petition, on July 19, 2007, the trial court denied his motion to
vacate the portion of a judgment mandating the sentences imposed on him in criminal
cause numbers A3024-0506 and A2823-0205, 64th District Court of Castro County, run
consecutively. He seeks a writ of mandamus compelling the trial court to so act.
Courts will issue mandamus to correct a clear abuse of discretion or the violation
of a duty imposed by law when there is no other adequate remedy available by appeal.
Walker v. Packer,
    827 S.W.2d 833
    , 839 (Tex. 1992) (orig. proceeding); see In re Prudential
Ins. Co. of America,
    148 S.W.3d 124
    , 135-36 (Tex. 2004) (orig. proceeding) (applying
Walker standard on adequacy of appellate remedy). It is the relator’s burden to show
entitlement to the relief being requested. See Johnson v. Fourth Court of Appeals,
    700 S.W.2d 916
    , 917 (Tex. 1985) (orig. proceeding).
For the reasons that follow, we cannot grant the relief relator’s petition requests.
First, the party filing a petition for a writ of mandamus bears the burden of providing the
court with a sufficient record to establish the petitioner’s right to mandamus relief. Tex. R.
App. P. 52.7; In re Fox,
    141 S.W.3d 795
    , 797 (Tex. App.–Amarillo 2004) (orig. proceeding).
The rules that govern our review of relator’s petition require, for example, that the petition
be accompanied by a certified or sworn copy of every document that is material to the
relator’s claim for relief and that was filed in any underlying proceeding. Tex. R. App. P.
52.7(a)(1). See also Tex. R. App. P. 52.3(j) (required contents of appendix to petition
include certified or sworn copy of “any order complained of”). Relator has not submitted
an appendix or any other material constituting a record to support his petition. He therefore
cannot demonstrate that the trial court has abused its discretion or violated a duty imposed
by law.
Second, as noted, one seeking mandamus relief must show that he has no
adequate remedy by appeal. Prudential Ins.
    Co., 148 S.W.3d at 136
    . Relator’s petition
does not explain why his complaint over his stacked sentences was not, or could not have
been, addressed on direct appeal. For this reason also, relator’s petition must be denied.
2
The petition for writ of mandamus is denied.1
James T. Campbell
Justice
1
We note also that it appears the objective of relator’s petition is post-conviction
relief in a felony proceeding. If this is his goal, we would lack the authority to grant relief.
Only the Texas Court of Criminal Appeals has jurisdiction in such post-conviction felony
proceedings. Ater v. Eighth Court of Appeals,
    802 S.W.2d 241 
    (Tex.Crim.App. 1991) (orig.
proceeding).
3