in Re Manuel Pena ( 2021 )

Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed February 25, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00735-CR
IN RE MANUEL PENA, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
184th District Court
Harris County, Texas
Trial Court Cause No. 1457098
MAJORITY OPINION
On October 30, 2020, relator Manuel Pena filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the Honorable Abigail
Anastasio, presiding judge of the 184th District Court of Harris County, to forward
all records in relator’s jury trial to relator for the purpose of preparing an application
for writ of habeas corpus.
To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding).
Indigent defendants do not have the right to a free record for collateral attacks on
their convictions. In re Bonilla, 424 S.W.3d 528, 532 (Tex. Crim. App. 2014) (orig.
proceeding). A trial court has the discretion to deny a request for a free record for
use in preparing a post-conviction writ application. In re Alvarez, 582 S.W.3d 553,
555 (Tex. App.―Waco 2019, orig. proceeding).
Because the trial court has the discretion to deny relator’s request for a free
record for use in a potential post-conviction application for writ of habeas corpus,
relator has failed to show that his request for relief involves a ministerial act rather
than a discretionary action.
Moreover, as the party seeking mandamus relief, relator has the burden of
providing this court with a sufficient record to establish his right to mandamus relief.
In re Gomez, 602 S.W.3d 71, 73 (Tex. App.―Houston [14th Dist.] 2020, orig.
proceeding); In re Henry, 525 S.W.3d 381, 382 (Tex. App.―Houston [14th Dist.]
2017, orig. proceeding). Relator has not met his burden. Relator has not included a
sworn or certified copy of the subject order or a sworn or certified copy of every
document that is material to relator’s claim for relief and was filed in the proceeding
in the trial court. See Tex. R. App. P. 52.3(k)(1)(a); 52.7(1).
2
Relator has not established that he entitled to mandamus relief. Accordingly,
we deny relator’s petition for writ of mandamus.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourilot, and Wilson. (Bourliot, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).
3