in Re Edward R. Newsome ( 2012 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00802-CV
In re Edward R. Newsome
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Edward R. Newsome, an inmate in the Texas Department of Criminal Justice,1 has
filed a document entitled Motion for Leave to file the Original Application for Writ of Mandamus
and Prohibition. A motion for leave to file a petition for writ of mandamus is required when relief
is sought from the court of criminal appeals. See Tex. R. App. P. 72.1. A motion for leave is not
required for such a petition filed in an intermediate appellate court. See Tex. R. App. P. 52.1. An
original proceeding seeking extraordinary relief in a court of appeals is commenced by the filing of
a petition. See id. Thus, under the applicable rules, if mandamus relief is sought from an
intermediate court, such as the Third Court of Appeals, a motion for leave to file the petition
is unnecessary.
To the extent that Newsome’s document could be read as a petition initiating an
original appellate proceeding seeking extraordinary relief, see id., there is simply inadequate
information supplied to even begin to address the legal merits. First, Newsome does not name a
1
It appears that Newsome was convicted in 1986 in Harris County of unauthorized use of
a motor vehicle and received a 39-year prison sentence.
Respondent, and it is unclear from the body of the document against whom he seeks mandamus
relief. Second, it is difficult to discern the precise nature of Newsome’s complaint. Consequently,
it is unclear what remedy or relief he seeks.
At the beginning of the document, Newsome appears to be requesting the
appointment of counsel and seeking permission to appeal to this Court a Motion for Leave to File
the Original Application for Writ of Mandamus and Prohibition. But then he mentions “a
declaratory judgment and a injunction relief for disposition related to merits on all other claims.”
Within the document Newsome references a pending writ of habeas corpus, which apparently raises
a claim of actual innocence, a motion for nunc pro tunc judgment requesting jail time credit, a
motion to expunge records, a motion to set aside and quash the indictment, and an application for
writ of mandamus filed in the Court of Criminal Appeals. Newsome also appears to complain about
a clemency application submitted to the Texas Board of Pardons and Paroles and asserts that he filed
a civil suit in Travis County seeking a hearing on his request for clemency and an injunction
requiring the parole board to hold such a hearing. Newsome does not, however, supply any
necessary information in the Motion for Leave to file the Original Application for Writ of Mandamus
and Prohibition that would help us determine whether he is entitled to any mandamus relief. Nor
does he attach or furnish any documents or records of proceedings.
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Tel. Co.,
235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); In re Braswell, 310 S.W.3d 165, 166 (Tex.
App.—Amarillo 2010, orig. proceeding). It is relator’s burden to properly request and show
entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re
2
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 this regard, the relator must provide the reviewing court with a record sufficient to establish his
right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Blakeney, 254 S.W.3d 659, 661
(Tex. App.—Texarkana 2008, orig. proceeding); see also Tex. R. App. P. 52.7(A) (relator must file
with petition “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”), 52.3(k) (specifying required contents for
appendix), 52.7(a) (specifying required contents for record).
Newsome has failed to satisfy his burden and has not established entitlement to the
extraordinary relief of a writ of mandamus. Accordingly, treating the document Newsome has filed
as a petition for writ of mandamus, it is denied.2
__________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Filed: December 18, 2012
2
In the title of his document, Newsome refers to a “writ of mandamus and prohibition.”
A writ of prohibition issues to prevent the commission of a future act. See In re Dacus,
337 S.W.3d 501, 504 (Tex. App.—Fort Worth 2011, orig. proceeding) (citing State ex rel. Wade
v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985)). Nowhere in his motion does Newsome
refer to, discuss, complain about, or seek the prevention of any future act. Thus, we do not construe
his document as a petition for writ of prohibition.
3