in Re the State of Texas, Relator ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00265-CV
IN RE THE STATE OF TEXAS, RELATOR
ORIGINAL PROCEEDING
August 10, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
On July 25, 2018, relator Christopher Dennis, District Attorney for the 286th
Judicial District of Hockley County, filed a petition for writ of mandamus and prohibition in
this Court. See TEX. GOV’T CODE ANN. § 22.221 (West Supp. 2017); TEX. R. APP. P. 52.
By his petition, relator asks this Court to issue a writ of mandamus ordering the Honorable
Pat Phelan, presiding judge of the 286th District Court of Hockley County, to withdraw his
July 2, 2018 order disqualifying the District Attorney’s Office from prosecuting seven
causes, and a writ of prohibition preventing the trial court from disqualifying the District
Attorney’s Office from prosecuting six other causes for which motions to disqualify remain
pending. We deny relator’s petition.
Background
The attorney for the real parties in interest, Christina Woods, and relator engaged
in an apparently contentious exchange relating to Woods’s motion to exclude expert
witnesses in an unrelated case in which relator represented the State and Woods
represented the defendant. According to relator, on June 4, 2018, he sent Woods a text
message withdrawing any existing plea bargain offers on all pending cases for which she
was the attorney of record. Woods subsequently filed a motion to disqualify the 286th
District Attorney’s Office in each of the cases in which the plea offers were withdrawn.
Shortly after holding a hearing on Woods’s motion to disqualify, respondent issued an
order declaring the District Attorney’s Office disqualified and appointing a special
prosecutor in seven of the cases. Respondent did not rule on the motions to disqualify
filed in six other cases. In response, relator filed his petition for writ of mandamus and
prohibition.
Law
Mandamus relief is generally only appropriate when the trial court has clearly
abused its discretion and the relator has no adequate remedy by appeal. In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). “A trial court abuses its discretion if
it clearly fails to analyze the law correctly or apply the law correctly to the facts.” In re
USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. App.—Houston [14th Dist.]
2012, orig. proceeding). As the party seeking relief, the relator bears the burden to
provide a sufficient record to establish his entitlement to mandamus relief. Walker v.
Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
2
A writ of prohibition must meet the same standards as a writ of mandamus;
prohibition seeks to “prevent the commission of a future act whereas [mandamus]
operates to undo or nullify an act already performed . . . .” In re Medina, 475 S.W.3d 291,
297 (Tex. Crim. App. 2015) (quoting State ex rel. Wade v. Mays, 689 S.W.2d 893, 897
(Tex. Crim. App. 1985)). To establish entitlement to relief through a writ of prohibition, an
applicant must show that the act he wishes the court to restrict “does not involve a
discretionary or judicial decision.” Id. (quoting Simon v. Levario, 306 S.W.3d 318, 320
(Tex. Crim. App. 2009)). In addition, an applicant must show that he has no adequate
remedy at law. Id. The applicant bears the burden to prove that he is entitled to a writ of
prohibition. See In re Thorn, Nos. 14-14-00190-CR, 14-14-00191-CR, 14-14-00192-CR,
2014 Tex. App. LEXIS 2824, at *3 (Tex. App.—Houston [14th Dist.] Mar. 13, 2014, orig.
proceeding) (mem. op., not designated for publication) (per curiam).
Analysis
The Texas Rules of Appellate Procedure set forth the documentation requirements
necessary to support an original proceeding. Specifically, relator is required to file an
appendix containing “a certified or sworn copy of any order complained of, or any other
document showing the matter complained of . . . .” TEX. R. APP. P. 52.3(k)(1). Relator
must also file a record containing “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,”
as well as “a properly authenticated transcript of any relevant testimony from any
underlying proceeding . . . .” TEX. R. APP. P. 52.7(a). Relator must also certify that “every
factual statement in the petition is supported by competent evidence included in the
appendix or record.” TEX. R. APP. P. 52.3(j). Relator has failed to comply with these rules.
3
As an initial matter, relator does not include a “certified or sworn copy” of the trial
court’s order disqualifying the District Attorney’s Office in the seven cases. Likewise,
none of the other documents included in the appendix to his original petition are certified
or sworn copies. From the petition, we can conclude that other relevant information has
not been included in the appendix, such as the reporter’s record from the hearing on
Woods’s motion to disqualify. Consequently, relator’s petition does not contain certified
or sworn documentation necessary to support his request for relief.
To meet his burden, relator attempts to show this Court that the trial court clearly
abused its discretion, but he does not provide cognizable evidence to demonstrate how
the trial court analyzed the law, what facts were before the court, or how the court applied
that law with respect to those facts. As relator acknowledges, a trial court may disqualify
a district attorney in cases in which the district attorney has been previously “employed
adversely.” See TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005). Moreover, the
standard of review for disqualification of the prosecutor by the trial court is abuse of
discretion. Landers v. State, 256 S.W.3d 295, 303 (Tex. Crim. App. 2008). Consequently,
relator would have to prove, with reference to documents in the record, that the trial court
clearly abused its discretion in disqualifying the District Attorney’s Office in these cases.
Without more information about what occurred before the trial court, relator cannot make
such a demonstration. Further, even were we to consider the uncertified and unsworn
documents appended to relator’s petition, there is insufficient information to show that the
trial court clearly abused its discretion.
“This court cannot make a sound decision based on an incomplete picture. But
that is precisely what relator is asking us to do by [his] failure to provide a sufficient
4
mandamus record.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.]
2011, orig. proceeding). Without a complete picture of what facts were before the trial
court and how the court applied the law to those facts in reaching its decision, this Court
does not have a basis on which to conclude that the trial court abused its discretion. See
id. at 813-14 (“[I]n the final analysis, this court cannot and will not find an abuse of
discretion on an incomplete record.”). It is relator’s burden to provide this Court with a
sufficient record to establish his right to relief. See Walker, 827 S.W.2d at 837. Relator
has not satisfied his burden.
Conclusion
Because relator has not met his burden of proof, we deny his petition for writ of
mandamus and prohibition.1
Judy C. Parker
Justice
1 We deny real parties in interest’s motion to strike the State’s petition for writ of mandamus and
prohibition. In addition, we deny real parties in interest’s motion to supplement the record as moot.
5