in Re Edward Carothers

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-558 CV ____________________

IN RE EDWARD CAROTHERS

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Original Proceeding

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MEMORANDUM OPINION ⁽¹⁾  

The relator, Edward Carothers, seeks an order that he be provided a free copy of the record of his trial. We take judicial notice that Carothers appealed his conviction out of the 252nd Judicial District Court of Jefferson County, Texas, in Cause No. 61720. The relator was provided with a free record in his appeal and was represented by appointed counsel. This Court dismissed the appeal; the Court of Criminal Appeal refused Carothers's petition for discretionary review, and our mandate issued on May 12, 1997. Carothers v. State, 928 S.W.2d 315, 317 (Tex. App.- Beaumont 1996, pet. ref'd). The Court of Criminal Appeals denied Carothers's writ of habeas corpus on September 24, 2003, in Writ No. 42,960-03. Carothers requested access to the record for the purpose of preparing another writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004).

Carothers complains that the trial court failed to rule upon his request for a writ of mandamus to compel the district clerk to produce the record as public information. See Tex. Gov't Code Ann. § 552.321 (Vernon Supp. 2004). Because Carothers is confined in a correctional facility, he is not entitled to relief under the Public Information Act. See Tex. Gov't Code Ann. § 552.028 (Vernon Supp. 2004).

An indigent defendant is not entitled to a free record once he has exhausted his appeal, absent some compelling, recognized reason. See In re Strickausen, 994 S.W.2d 936, 937 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding); Eubanks v. Mullin, 909 S.W.2d 574, 576-77 (Tex. App.- Fort Worth 1995, orig. proceeding); Escobar v. State, 880 S.W.2d 782, 784 (Tex. App.- Houston [1st Dist.] 1993, order). Carothers has not demonstrated that he would be entitled to have the merits of a cognizable claim addressed in a subsequent writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07, § 4 (Vernon Supp. 2004). Furthermore, he has failed to demonstrate that the duplicate record prepared for his appeal in 1994 still exists. See Tex. R. App. P. 51(c), 53(l) (repealed, for current rule, see Tex. R. App. P. 34.5(g), 34.6(h)).

The relator has not shown that he is entitled to the relief sought. Accordingly, the petition for writ of mandamus is denied.

WRIT DENIED

PER CURIAM

Opinion Delivered January 22, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.