in Re Jose A. Garcia ( 2012 )

NUMBER 13-12-00607-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE JOSE A. GARCIA
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion Per Curiam1
Relator, Jose A. Garcia, proceeding pro se, filed a “Motion to Petition for a Writ of
Mandamus” in the above cause on October 9, 2012. Relator seeks to compel the
presiding judge of the 404th District Court to order her court reporter to prepare the
appellate record for his pending appeal, Garcia v. Abrego, in our cause number 13-12-
00390-CV.2 The petition for writ of mandamus is denied as stated herein.
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).
2
The Court previously considered and denied a similar petition for writ of mandamus filed by
relator regarding the record on appeal. See In re Garcia, No. 13-12-00571-CV, 2012 Tex. App. LEXIS
8365, at **1–5 (Tex. App.—Corpus Christi Sept. 26, 2012, orig. proceeding) (mem. op.) (per curiam).
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I. STANDARD OF REVIEW
To be entitled to the extraordinary relief of a writ of mandamus, the relator must
show that the trial court abused its discretion and that there is no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). The relator has the burden of establishing both prerequisites to
mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149,
151 (Tex. 2003) (orig. proceeding); see also 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.”).
The Texas Rules of Appellate Procedure delineate the required form for an
original proceeding, such as a petition for writ of mandamus, and the failure to comply
with the appellate rules renders an original proceeding defective. See, e.g., TEX. R.
APP. P. 9.5(a), (d), (e) (requiring proof that copies of documents presented to court for
filing were served on all parties to proceeding); Id. R. 52.3(a)—(i) (requiring that petition
include identity of parties and counsel, table of contents, index of authorities, statement
of case, statement of jurisdiction, issues presented, statement of facts, argument—
including appropriate citations to authorities and to appendix or record materials, and
prayer for relief); Id. R. 52.3(j) (requiring certification that relator reviewed petition and
concluded that every factual statement in petition is supported by competent evidence
included in appendix or record); Id. R. 52.3(k) (requiring relator to file an appendix
including, inter alia, a certified or sworn copy of any order complained of); Id. R. 52.7(a)
(requiring relator to file a record including, inter alia, certified or sworn copies of all
documents material to the claim for relief).
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II. JURISDICTION
Relator seeks mandamus relief against the Honorable Elia Cornejo Lopez,
presiding judge of the 404th District Court of Cameron County, Texas, to compel the
production of the reporter’s record for relator’s appeal. The petition for writ of
mandamus is unclear regarding whether relator is contending that the appellate record
has not been filed or that the appellate record is incomplete. We note that although
relator requests mandamus relief to obtain the reporter’s record, the petition for writ of
mandamus also raises complaints about the inclusion or exclusion of certain documents
from the clerk’s record.
This Court has mandamus jurisdiction where it is shown that issuance of the writ
is necessary to enforce our appellate jurisdiction. See TEX. GOV'T CODE ANN. §
22.221(a), (b) (West 2004); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st
Dist.] 2006, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex. App.—
Houston [1st Dist.] 1999, orig. proceeding); In re Coronado, 980 S.W.2d 691, 692 (Tex.
App.—San Antonio 1998, orig. proceeding); see also In re Nubine, No. 13-08-507-CV,
2008 Tex. App. LEXIS 6534, at *1 (Tex. App.—Corpus Christi Aug. 27, 2008, orig.
proceeding) (mem. op.) (per curiam). Accordingly, issuance of a writ of mandamus
could, in certain circumstances, be necessary to enforce our jurisdiction regarding the
preparation and filing of the appellate record. In re Smith, 270 S.W.3d 783, 785 (Tex.
App.—Waco 2008, orig. proceeding); In re Smith, 263 S.W.3d at 95–96; In re
Washington, 7 S.W.3d at 182. Similarly, because a reporter's record is often necessary
to the exercise of appellate jurisdiction, a court of appeals may issue a writ of
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mandamus to compel the completion of the reporter's record. See Wolters v. Wright,
623 S.W.2d 301, 305 (Tex. 1981).
III. MOTION FOR LEAVE
Relator’s petition for writ of mandamus includes a motion for leave to file the
petition. The Texas Rules of Appellate Procedure no longer require the relator to file a
motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt.
Therefore, we dismiss relator’s motion for leave to file the petition for writ of mandamus
as moot.
IV. ANALYSIS
Taking judicial notice of our own records, the reporter’s record in the underlying
appeal was filed on September 4, 2012, and the four-volume clerk’s record for the
appeal was filed on September 12, 2012. Accordingly, to the extent that the petition for
writ of mandamus may be seeking an order requiring the preparation of the appellate
record, the petition for writ of mandamus is moot. See In re Kellogg Brown & Root, Inc.,
166 S.W.3d 732, 737 (Tex. 2005) (AA case becomes moot if a controversy ceases to
exist between the parties at any stage of the legal proceedings . . .@); State Bar of Texas
v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (stating that, for a controversy to be
justiciable, there must be a real controversy between the parties that will be actually
resolved by the judicial relief sought).
To the extent that relator appears to contend that the appellate record is
incomplete or lacks specific information, the Texas Rules of Appellate Procedure
provide that where a relevant item has been omitted from the clerk’s record or reporter’s
record, any party may, by letter direct the trial court clerk or court reporter to prepare,
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certify, and file in the appellate court a supplemental record containing the omitted item
or items. See TEX. R. APP. P. 34.5(c)(1), 34.6(d). Thus, relator has an adequate
remedy for any alleged harm caused by an incomplete record.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus and the applicable law, is of the opinion that relator has not met his burden
to obtain mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.
Accordingly, the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
12th day of October, 2012.
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