in Re Melvin Carter ( 2015 )

NUMBER 13-15-00444-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE MELVIN CARTER
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion Per Curiam1
On September 24, 2015, Melvin Carter, proceeding pro se, filed a petition for writ
of mandamus seeking to compel the Board of Pardons and Paroles for the State of Texas
to provide relator with a written statement specifying the reasons for denying relator’s
release on parole. See TEX. GOV’T CODE ANN. § 508.1411 (West, Westlaw through 2015
R.S.); see also Ex parte Phillips, No. WR-82,437-01, 2014 WL 7189084, at *1 (Tex. Crim.
App. Dec. 17, 2014) (per curiam order, not designated for publication) (requesting briefing
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
on whether Board of Pardons and Paroles’ written notice of its decision not to release an
applicant violates due process). We dismiss the petition for writ of mandamus for lack of
jurisdiction.
I. STANDARD OF REVIEW
To be entitled to mandamus relief, 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 ministerial act not involving a discretionary or judicial decision. State ex rel. Young
v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007).2 If relator fails to meet both of these requirements, then the petition for writ
of mandamus should be denied. See id.
It is the relator’s burden to properly request and show entitlement to mandamus
relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see
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
2 Relator contends that this “is not a criminal law matter, therefore this court has original jurisdiction
of this action and has authority to issue a writ of mandamus.” However, criminal law matters encompass,
“at a minimum,” all legal issues arising directly out of a criminal prosecution. Lanford v. Fourteenth Ct. of
Apps., 847 S.W.2d 581, 585 n. 3 (Tex. Crim. App. 1993); see Armstrong v. State, 340 S.W.3d 759, 765
(Tex. Crim. App. 2011); Smith v. Flack, 728 S.W.2d 784, 788 (Tex. Crim. App. 1987). Further, disputes
which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which
arise as a result of or incident to a criminal prosecution, are criminal law matters. Armstrong, 340 S.W.3d
at 765; Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993). An issue may comprise a criminal law
matter even if elements of civil law must be addressed to resolve the issue. See Armstrong, 340 S.W.3d
at 765; State ex rel. Holmes v. Honorable Ct. of Apps. for Third Dist., 885 S.W.2d 389 (Tex. Crim. App.
1994).
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contentions made, with appropriate citations to authorities and to the appendix or record.”
See generally TEX. R. APP. P. 52.3. The relator must also file an appendix and record
sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the
required contents for the appendix); R. 52.7(a) (specifying the required contents for the
record); see also Walker, 827 S.W.2d at 837; In re Blakeney, 254 S.W.3d 659, 661 (Tex.
App.—Texarkana 2008, orig. proceeding).
In this regard, relator has failed to provide this Court with a record or appendix
supporting his request for mandamus relief. Moreover, the petition for writ of mandamus
itself fails to specify the crime for which relator was convicted, the court in which he was
convicted, or the identity of the real party in interest herein.
II. JURISDICTION
Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction of
the courts of appeals, and states that the courts of appeals “shall have such other
jurisdiction, original and appellate, as may be prescribed by law.” TEX. CONST. art. V, § 6.
As an appellate court, this Court’s original jurisdiction is governed by section 22.221 of
the Texas Government Code. See TEX. GOV’T CODE ANN. § 22.221 (West, Westlaw
through 2015 R.S.); see also In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012,
orig. proceeding). Section 22.221 expressly limits the mandamus jurisdiction of the courts
of appeals to: (1) writs against a district court judge or a county court judge in the court
of appeals’ district; and (2) all writs necessary to enforce the court of appeals’ jurisdiction.
TEX. GOV’T CODE ANN. § 22.221.
Relator’s petition seeks mandamus relief against the Board of Pardons and
Paroles for the State of Texas. However, this Court does not have jurisdiction to issue a
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writ against the Board of Pardons and Paroles. See id.; see also In re Fowler, No. 14-15-
00712-CR, 2015 WL 5092623, at *1 (Tex. App.—Houston [14th Dist.] Aug. 27, 2015, orig.
proceeding) (per curiam mem. op., not designated for publication). Further, relator has
not shown that issuance of a writ compelling the requested relief is necessary to enforce
our jurisdiction. See TEX. GOV’T CODE ANN. § 22.221; In re Richardson, 327 S.W.3d 848,
851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296 S.W.3d 682, 684
(Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex.
App.—Houston [1st Dist.] 1999, orig. proceeding).
III. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
is of the opinion that relator has not established this Court’s jurisdiction over the relief
sought. Accordingly, the petition for writ of mandamus is DISMISSED.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of September, 2015.
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