in Re Roger Eugene Fain ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00499-CV
IN RE ROGER EUGENE FAIN RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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Relator Roger Eugene Fain has filed a petition for a writ of mandamus,
asking us to require the 372nd District Court of Tarrant County to unseal a
volume of the reporter’s record from his criminal trial, in which he was convicted
of capital murder, and to provide that volume to him.2 Relator’s petition indicates
that he intends to use the volume to challenge his final felony conviction.
1
See Tex. R. App. P. 47.4, 52.8(d).
2
See Fain v. State, No. 02-08-00002-CR, 2009 WL 2579580, at *9 (Tex.
App.—Fort Worth Aug. 20, 2009, pet. ref’d) (mem. op., not designated for
publication) (affirming relator’s capital murder conviction). The 372nd District
Court indicated that it sealed the volume under the authority of article 35.29 of
Jurisdiction to grant relief from a final felony conviction rests exclusively
with the court of criminal appeals through a petition for a writ of habeas corpus
under article 11.07 of the code of criminal procedure. Bd. of Pardons & Paroles
ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex.
Crim. App. 1995) (orig. proceeding); Ater v. Eighth Court of Appeals, 802 S.W.2d
241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (“We are the only court with
jurisdiction in final post-conviction felony proceedings.”). Thus, we conclude that
we have no jurisdiction in this original proceeding in which relator seeks the
record from his criminal trial for the purpose of challenging his final felony
conviction. See In re Ray, No. 14-11-00509-CR, 2011 WL 2462554, at *1 (Tex.
App.—Houston [14th Dist.] June 21, 2011, orig. proceeding) (mem. op., not
designated for publication) (holding that an intermediate appellate court has no
jurisdiction over a relator’s request for records related to a final felony conviction);
In re Gipson, No. 12-08-00230-CR, 2008 WL 2266100, at *1 (Tex. App.—Tyler
June 4, 2008, orig. proceeding) (mem. op., not designated for publication)
(“Because Gipson requests the record for purposes of pursuing postconviction
relief in two felony cases, we conclude that we have no jurisdiction to consider
the merits of his [mandamus] petition.”); In re Trevino, 79 S.W.3d 794, 796 (Tex.
App.—Corpus Christi 2002, orig. proceeding) (“Because relator requests the
the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 35.29 (West
Supp. 2012) (stating that personal information about jurors “is confidential and
may not be disclosed” except on a showing of good cause).
2
record [from his criminal trial] for the purposes of pursuing post-conviction relief,
we have no jurisdiction to consider the merits of relator’s petition.”). We dismiss
relator’s petition for a writ of mandamus for want of jurisdiction.3
PER CURIAM
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
DELIVERED: December 20, 2012
3
Relator also requests that we grant an out-of-time appeal from his felony
conviction, but only the court of criminal appeals may do so. See Noonkester v.
State, No. 02-11-00198-CR, 2011 WL 2611247, at *1 (Tex. App.—Fort Worth
June 30, 2011, no pet.) (mem. op., not designated for publication).
3