in Re Mickey Wayne Boswell ( 2019 )

NUMBER 13-19-00574-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
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IN RE MICKEY WAYNE BOSWELL
____________________________________________________________
On Petition for Writ of Mandamus.
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MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Tijerina
Memorandum Opinion by Chief Justice Contreras1
Relator Mickey Wayne Boswell, proceeding pro se, filed a petition for writ of
mandamus in the above cause on November 8, 2019. 2 Through this original proceeding,
relator seeks to compel the trial court to “expand the record” and “reinstate” relator’s
petition for writ of habeas corpus under article 11.07 of the Texas Code of Criminal
1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d)
(“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief,
the court may hand down an opinion but is not required to do so.”).
2 Relator also filed a motion for leave to file his petition for writ of mandamus. We dismiss relator’s
motion for leave as moot. The Texas Rules of Appellate Procedure no longer require the relator to file a
motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt.
Procedure. 3 See TEX. CODE CRIM. PROC. ANN. art. 11.07. We deny the petition for writ
of mandamus.
To be entitled to mandamus relief, the 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 purely ministerial act not involving a discretionary or judicial decision. In re Harris,
491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422
S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet
both requirements, then the petition for writ of mandamus should be denied. State ex
rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007).
It is the 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, the 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. The 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); id. R. 52.7(a) (specifying the required contents for
the record).
3 Relator’s conviction in the underlying case was affirmed on direct appeal. See Boswell v. State,
Nos. 13-11-00785-CR, 13-11-00786-CR, & 13-11-00791-CR, 2015 WL 5655823, at *1 (Tex. App.—Corpus
Christi–Edinburg Sept. 24, 2015, pet. ref’d) (mem. op., not designated for publication).
2
Relator’s petition for writ of mandamus fails to meet the foregoing requirements.
In short, the record in this case is insufficient to determine whether relator’s application
for writ of habeas corpus remains pending or whether relator seeks to pursue a separate
application for writ of habeas corpus in the future. This distinction is critical because it
determines whether this Court has jurisdiction over the petition for writ of mandamus.
See In re Mendez, 523 S.W.3d 164, 165 (Tex. App.—Dallas 2016, orig. proceeding);
compare Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)
(orig. proceeding) (holding that the court of criminal appeals has exclusive jurisdiction to
grant post-conviction relief by writ of habeas corpus) with Padieu v. Court of Appeals of
Tex., Fifth Dist., 392 S.W.3d 115, 118 (Tex. Crim. App. 2013) (orig. proceeding)
(delineating the limited jurisdiction possessed by intermediate appellate courts pertaining
to article 11.07 applications for writs of habeas corpus). We note that if an applicant
finds it necessary to complain about the processing of an article 11.07 application for writ
of habeas corpus, the applicant may seek mandamus relief directly from the Texas Court
of Criminal Appeals. See, e.g., Benson v. Dist. Clerk, 331 S.W.3d 431, 432–33 (Tex.
Crim. App. 2011) (per curiam); Gibson v. Dallas Cty. Dist. Clerk, 275 S.W.3d 491, 491–
92 (Tex. Crim. App. 2009) (per curiam); In re Watson, 253 S.W.3d 319, 320 (Tex. App.—
Amarillo 2008, orig. proceeding); see also In re Provost, No. 14-19-00374-CR, 2019 WL
2144778, at *1 (Tex. App.—Houston [14th Dist.] May 16, 2019, orig. proceeding) (mem.
op., not designated for publication).
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. Accordingly, we deny the petition for writ of mandamus and all relief
requested therein.
3
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of November, 2019.
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