in Re Roger Merryl Akerson ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-016 CV ____________________

IN RE ROGER MERRYL AKERSON

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Original Proceeding

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MEMORANDUM OPINION ⁽¹⁾  

Roger Merryl Akerson seeks a writ of mandamus to compel the judge of the 253rd District Court of Liberty County, Texas, to rule upon his motion to obtain copies of the records of Cause No. 21455. That case was a criminal conviction affirmed by this Court in 1998. See Akerson v. State, No. 09-97-101 CR, 1998 WL 320445 (Tex. App.-Beaumont 1998, pet. filed)(not designated for publication). The motion at issue alleges the records are essential to preparation of Akerson's application for writ of habeas corpus.

The mandamus petition is deficient in several important respects. Most notably, the relator provided this Court with an undated original motion bearing no file mark or other indication that it was filed with the 253rd District Court. Therefore, the record before us does not establish that the trial court refused to rule on the motion.

We observe that Akerson has already filed a writ of habeas corpus in Cause No. 21455. The Court of Criminal Appeals granted relief in the form of an out-of-time petition for discretionary review. ⁽²⁾ See Ex parte Akerson, No. AP-74,974, 2004 WL 1748348 (Tex. Crim. App. July 28, 2004)(not designated for publication). The case is currently before the Court of Criminal Appeals on petition for discretionary review in No. PD-1467-04. If habeas relief has been granted and the case is properly before the Court of Criminal Appeals, we discern no reason for the trial court to rule on a motion in the case at this time.

To obtain mandamus relief in a criminal matter, the relator must show that he has no other adequate remedy at law to address the alleged error and that the act the relator seeks to compel is ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). The relator has not shown that he is entitled to the relief sought. See Tex. R. App. P. 52.3(j). The petition for writ of mandamus, filed January 12, 2005, is denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered January 27, 2005

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Tex. R. App. P. 47.4.

2. The habeas proceeding was filed and set in WR-58,867-01, but submitted and disposed in AP-74,974.