                                        NO. 07-11-0209-CV

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL E

                                           JULY 7, 2011

                             ______________________________


                              IN RE JASON LAWSON, RELATOR

                           _________________________________


                        ORIGINAL PROCEEDING
    ARISING FROM PROCEEDINGS BEFORE THE 140TH DISTRICT COURT OF
             LUBBOCK COUNTY; NOS. 2001-438439 & 2001-438400;
              HONORABLE JIM BOB DARNELL, JUDGE PRESIDING

                             _______________________________

Before HANCOCK and PIRTLE, JJ., and BOYD, S.J.1


                                   MEMORANDUM OPINION


        Relator, Jason Lawson, an inmate proceeding pro se, seeks a writ of mandamus

to compel the Honorable Jim Bob Darnell, Judge of the 140th District Court of Lubbock

County, to rule on a Motion to Correct Illegal Sentence.2 Relator alleges the trial court

has failed to rule on his motion which has been pending since August 25, 2010. We

deny the requested relief.
1
 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. § 75.002(a)(1) (West 2005).
2
 Relator's complaint relates to his convictions for aggravated robbery which this Court affirmed on June
23, 2004, in cause numbers 07-03-00321-CR and 07-03-00322-CR.
                              Mandamus Standard of Review


         Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only

to correct a clear abuse of discretion or the violation of a duty imposed by law when

there is no other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d

916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief, a

relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979).


                                          Analysis


         Initially, we address Relator's failure to comply with all but one of the mandatory

requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. While we are

able to discern the identity of the parties, Relator's request for relief does not include a

Table of Contents, Index of Authorities, Statement of the Case, Statement of

Jurisdiction, Issues Presented, Statement of Facts, Argument, Prayer, Certification, or

Appendix. See Tex. R. App. P. 52.3(a) - (k). Most importantly, Relator did not include a

certified or sworn copy of the motion he complains of which would bear a file stamp date

reflecting how long that motion has been pending in the trial court. Id. at 52.3(k)(1)(A).


         Although pro se filings may be reviewed less stringently than those filed by

attorneys, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652

(1972), a party proceeding pro se must still comply with rules of procedure.           See

                                              2
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Even if we were to

review Relator's request for mandamus relief with patience and liberality, he still has not

satisfied his burden to provide a sufficient record to enable this Court to consider the

merits of his complaint. See Walker, 827 S.W.2d at 837.


       Additionally, Relator requests a ruling on his motion "with full consideration of the

merits of the motion pending, and not just a blantant [sic] denial which would result in

[Relator] filling [sic] an appeal . . . ." Relator intimates he would be dissatisfied with a

denial of his motion. While a trial court has a ministerial duty to consider and rule on a

motion properly filed and pending before it, a particular ruling on the motion is generally

discretionary and may be remedied by ordinary appeal. In re Washington, No. 09-07-

00246-CV, 2007 Tex. App. LEXIS 6449, at *2 (Tex.App.--Beaumont Aug. 16, 2007, orig.

proceeding) (citing Ex parte Barnes, 65 S.W.3d 133, 134-35 (Tex.App.--Amarillo 2001,

orig. proceeding)).


       Appellant's underlying cases resulted in two concurrent fifty year sentences. This

original proceeding was brought to compel the trial court to rule on his motion to correct

what he characterizes as illegal sentences. On direct appeal of the underlying cases,

Relator challenged his sentences as null and void. In affirming his convictions, this

Court disagreed. See Lawson v. State, Nos. 07-03-00321-CR, 07-03-00322-CR, 2004

Tex. App. LEXIS 5557, at *4 (Tex.App.--Amarillo 2004, no pet.) (mem. op.) (not

designated for publication).


       Mandamus will not lie when there is an adequate remedy by appeal.              In re

Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004).           The right to appeal a criminal


                                             3
conviction is created by statute. See Tex. Code Crim. Proc. Ann. art. 44.02 (West

2006). See also McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006). There

is but one direct appeal; "[t]here is no second bite at the direct appeal apple." King v.

State, 125 S.W.3d 517, 520 (Tex.Crim.App. 2003). Appellant exercised his right to a

direct appeal and this Court addressed his sentences at that time.


                                      Conclusion


      Accordingly, Relator's petition for writ of mandamus is denied for failing to comply

with the requirements of Rule 52.3 and because he has previously had his complaint

addressed by this Court on direct appeal from his convictions.



                                                Patrick A. Pirtle
                                                    Justice




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