in Re: Jeffrey L. Ward ( 2015 )


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  •                                     NO. 12-15-00114-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    IN RE:                                           §
    JEFFREY L. WARD,                                §               ORIGINAL PROCEEDING
    RELATOR                                         §
    MEMORANDUM OPINION
    PER CURIAM
    Relator Jeffrey L. Ward filed a petition for writ of mandamus complaining that a copy of
    the reporter’s record from a July 8, 1993 evidentiary hearing is presently unavailable. He alleges
    that the court reporter filed a copy of the record with the Cherokee County District Clerk, but the
    copy cannot be located. He alleges that the reporter’s record is critical to an application for writ
    of habeas corpus he intends to file challenging his final felony convictions. See generally Ward
    v. State, 
    910 S.W.2d 1
    (Tex. App.–Tyler 1995, pet. ref’d) (affirming Relator’s convictions for two
    counts of aggravated sexual assault and one count of possession of child pornography). We
    dismiss the petition in part, and deny it in part.
    JURISDICTION AND PREREQUISITES TO MANDAMUS
    A court of appeals may issue a writ of mandamus against a judge of a district or county
    court in the court of appeals district or a judge of a district court who is acting as a magistrate at a
    court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district.
    TEX. GOV'T CODE ANN. § 22.221(b) (West 2004). Additionally, a court of appeals may issue “all
    other writs necessary to enforce the jurisdiction of the court.” 
    Id. § 22.221(a)
    (West 2004).
    To obtain mandamus relief in a criminal case, a relator must demonstrate that he does not
    have an adequate remedy at law to redress an alleged harm and that the act he seeks to compel is
    ministerial, that is, not involving a discretionary or judicial decision. See State ex rel. Young v.
    Sixth Judicial Dist. Court of Appeals, 
    236 S.W.3d 207
    , 210 (Tex. Crim. App. 2007) (orig.
    proceeding). If the relator fails to satisfy either aspect of this two part test, mandamus relief should
    be denied. 
    Id. AVAILABILITY OF
    MANDAMUS
    Relator names the trial court judge in the underlying criminal proceeding, the present and
    former district attorneys, and the district clerk of Cherokee County as respondents in this
    proceeding. This court’s mandamus authority does not extend to the present district attorney or
    her predecessor or to the district clerk. See TEX. GOV’T CODE ANN. § 22.221(b).                             Moreover,
    Relator does not allege facts that show any abuse of discretion by the trial court judge. Instead, he
    speculates generally that, because the district clerk’s copy of the reporter’s record cannot be
    located, certain of the respondents have obtained it and withheld it from disclosure.                      But he does
    not allege facts that support his conclusion.1 Nor does he explain how his conclusion, even if true,
    would extend our mandamus authority beyond the trial court judge. See TEX. GOV’T CODE ANN.
    § 22.221.
    After reviewing Relator’s petition, we conclude that this court lacks jurisdiction to consider
    Relator’s complaints about the present and former district attorneys and the district clerk. See TEX.
    GOV’T CODE ANN. § 22.22(a). Furthermore, he has not shown any abuse of discretion by the trial
    court judge. Accordingly, his petition for writ of mandamus is dismissed for want of jurisdiction
    in part and denied in part.
    Opinion delivered May 13, 2015.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    (DO NOT PUBLISH)
    1
    Relator points out that, in its opinion affirming his convictions, this court states that the reporter’s record
    he seeks was never filed in the appeal. He also refers to later correspondence with a deputy clerk of this court by
    which he learned that the reporter’s record was retained by this court. The footnote in the opinion explains why the
    July 8, 1993 reporter’s record was never filed in the appeal. See Ward v. State, 
    910 S.W.2d 1
    , 2 n.1 (Tex. App.–Tyler
    1995, pet. ref’d). On May 1, 2015, the reporter’s record Relator seeks was returned to the district clerk of Cherokee
    County.
    2
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    MAY 13, 2015
    NO. 12-15-00114-CR
    JEFFREY L. WARD,
    Relator
    v.
    HON. BASCOM M. BENTLEY, III,
    Respondent
    ORIGINAL PROCEEDING
    ON THIS DAY came to be heard the petition for writ of mandamus filed by
    JEFFREY L. WARD; who is the relator in Cause No. 11965, pending on the docket of the 2nd
    Judicial District Court of Cherokee County, Texas. Said petition for writ of mandamus having
    been filed herein on May 1, 2015, and the same having been duly considered, because it is the
    opinion of this Court that this Court does not have jurisdiction to consider Relator’s complaints
    about the present and former district attorneys and the district clerk, those complaints should be
    dismissed for want of jurisdiction. Further, because it is the opinion of this Court that Relator
    failed to show an abuse of discretion by the trial court judge, Relator's petition as to the trial court
    judge should be denied.
    It is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition
    for writ of mandamus be, and the same is, hereby denied as to the trial court judge and dismissed
    for want of jurisdiction as to all other respondents.
    By per curiam opinion.
    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
    

Document Info

Docket Number: 12-15-00114-CR

Filed Date: 5/13/2015

Precedential Status: Precedential

Modified Date: 10/16/2015