in Re Bryan Chance McBee ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00179-CR
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IN RE BRYAN CHANCE MCBEE
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Original Proceeding
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MEMORANDUM OPINION
Bryan Chance McBee petitioned for a writ of mandamus compelling the
judge of the 221st District Court of Montgomery County to require the court
coordinator to set for hearing McBee’s motion for a loan of the duplicate record
that was prepared for an appeal. See generally Tex. R. App. P. 34.5(g), 34.6(h).
McBee does not contend that the trial court retains plenary power over the criminal
case.1
There is no active habeas proceeding; accordingly, this Court has mandamus
jurisdiction. See Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115,
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We issued a mandate of affirmance in July 2014. See generally McBee v.
State, No. 09-13-00232-CR, 2014 WL 1400656, at *5 (Tex. App.—Beaumont Apr.
9, 2014, pet. ref’d) (mem. op.) (affirming judgment as modified).
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117-18 (Tex. Crim. App. 2013). However, the mandamus petition lacks certified or
sworn copies of “every document that is material to the relator’s claim for relief[.]”
See Tex. R. App. P. 52.7(a)(1). McBee suggests he cannot provide copies of
documents because he is a prisoner. McBee also failed to provide proof of service
on the respondent and the prosecuting attorney. See Tex. R. App. P. 9.5.
The petition nevertheless demonstrates that McBee is not entitled to
mandamus relief because he has not shown that he has a clear and indisputable
right to the requested relief. See In re Williams, No. 09-09-00584-CV, 2010 WL
183861, at *1 (Tex. App.—Beaumont Jan. 21, 2010, orig. proceeding) (mem. op.);
see also In re Cash, No. 06-04-00045-CV, 2004 WL 769473, at *1 (Tex. App.—
Texarkana Apr.13, 2004, orig. proceeding) (mem. op.) (A trial court has no duty to
rule on “free-floating motions unrelated to currently pending actions.”).
The relator has not shown that he is entitled to mandamus relief.
Accordingly, we deny the petition for writ of mandamus.
PETITION DENIED.
PER CURIAM
Submitted on May 26, 2015
Opinion Delivered May 27, 2015
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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