Gary Lee Allen v. State ( 2003 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00045-CR ______________________________



GARY LEE ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 13,813-93

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

On January 24, 1994, Gary Lee Allen pled guilty to the offense of forgery in Wood County cause number 13,813-93. ⁽¹⁾ The indictment further alleged Allen had been previously, finally, and sequentially convicted of two other felony offenses. The writing in question purported to be a check signed by another person. At the time Allen committed his crime (given the facts in this case), forgery was a third degree felony. See Tex. Pen. Code Ann. § 32.21. ⁽²⁾ Having previously admonished Allen about the enhanced punishment range applicable in this case (twenty-five to ninety-nine years, or life), the trial court accepted Allen's plea and deferred a finding of guilt, placing Allen on community supervision for a period of ten years, provided and conditioned he commit no new offenses and pay court-appointed attorney's fees. The trial court also held that Allen had previously been convicted of two sequential felony offenses.

On February 16, 2001, the State filed a motion to proceed to final adjudication of Allen's guilt. On January 14, 2002, the trial court approved a written stipulation, signed by both Allen and his counsel, in which Allen admitted committing a new criminal offense and failing to pay his court-appointed attorney's fees. The trial court then continued the case until January 31, 2002, for sentencing. On January 31, the trial court heard additional witness testimony from Allen's relatives. At the conclusion of the hearing, the trial court adjudicated Allen's guilt, reiterated its previous finding that Allen had been previously, finally, and sequentially convicted of two felony offenses before the commission of the offense in this case, and sentenced Allen to twenty-five years' incarceration.

On January 8, 2003, Allen's appellate counsel filed an Anders ⁽³⁾ brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Allen a copy of the appellate brief and informed Allen of his right to file a response pro se and right to review the record.

   This Court informed Allen at that time that his response, if any, was due within thirty days. As of this date, we have not received a pro se response. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. The punishment assessed in this case was the minimum twenty-five years permitted under Texas law. See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003). The evidence presented at the sentencing hearing revealed Allen had a lengthy criminal history for various felony thefts and forgeries dating back to 1977. The evidence at the hearing also showed Allen had been convicted of several new felony offenses since being placed on community supervision in the case now before us. Accordingly, we affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: April 24, 2003

Date Decided: April 25, 2003

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1. Allen simultaneously pled guilty to three additional forgery charges in Wood County cause numbers 13,814-93, 13,815-93, 13,816-93. Those cases were appealed to this Court in cause numbers 06-02-00046-CR, 06-02-00047-CR, and 06-02-00048-CR. The merits of those appeals are addressed by separate opinions.

2. Amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3643-44. The Legislature amended the forgery statute, effective September 1, 1994, downgrading the punishment range for forgery from a third degree felony to a state jail felony. See Tex. S.B. 1067.

3. Anders v. California, 386 U.S. 738 (1967).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

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                                                             No. 06-11-00256-CR

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                                              IN RE:  RUBEN SOLIS ANDERSON

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Ruben Solis Anderson filed a petition for writ of mandamus listing the Texas Department of Corrections as the respondent.  In the substance of the petition, Anderson claims that he filed a writ of habeas corpus on October 18, 2011, with the clerk of the Bowie County District Court seeking “transfer to a safe prison” because “[a]ttempts on his life have been done.”  He complains that “[t]he bowie county district court, clerk [sic] office too have been non-responsive,” and asks this Court to “issue a writ of mandamus to Bowie County Court to address life endangerment issues.” 

            This Court has jurisdiction to issue a writ of mandamus against a “judge of a district or county court in the court of appeals district.”  Tex. Gov’t Code Ann. § 22.221(b) (West 2004).  Because we do not have jurisdiction against a district clerk or the Texas Department of Corrections unless necessary to enforce our jurisdiction, and Anderson has not demonstrated that mandamus relief is necessary for this purpose, we have no jurisdiction over these parties to the extent Anderson seeks relief against them. 

            This leaves the request that writ issue against the Bowie County District Court.  Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or violation of a duty imposed by law when no other adequate remedy by law is available.  State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding).  Due to the nature of this remedy, it is Anderson’s burden to properly request and show entitlement to the mandamus relief.  See generally Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding); 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.”).

            Anderson had the obligation to provide us with evidence in support of his claim that he is entitled to mandamus relief.  No portion of any clerk’s record or reporter’s record has been filed with this Court.  The absence of a mandamus record prevents us from evaluating the circumstances of this case and, consequently, the merits of Anderson’s complaints.  See Tex. R. App. P. 52.7; Barnes, 832 S.W.2d at 426.

            We deny the petition for writ of mandamus.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          December 13, 2011

Date Decided:             December 14, 2011

Do Not Publish