                                     NO. 07-03-0103-CV

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                       MAY 16, 2003

                           ______________________________


                       IN RE CHRISTOPHER W. BUNCH, RELATOR

                         _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                   MEMORANDUM OPINION1


       In this original proceeding relator Christopher W. Bunch seeks a writ of mandamus

directing the district court to conduct a hearing on his motion to obtain a copy of the record

in his prosecution for the felony offense of possession of a controlled substance. For the

reason set out below, we deny relator’s request.


       Relator was convicted of possession of methamphetamine in cause number 13,131-

B in the 181st District Court and sentenced to 35 years confinement in the Institutional

Division of the Texas Department of Criminal Justice.



       1
           Tex.R.App.Proc. 47.4.
       According to relator’s petition, he filed a motion in the 181st District Court on

December 3, 2002, requesting a “free copy of the trial court records” or, in the alternative,

the loan of such records, in cause number 13,131-B, and attached an affidavit of

indigence. With his motion, relator states he filed a request to the district clerk for a hearing

date. Neither the trial court or the district clerk have made any response to his motion.


       Although relator’s petition contains several defects in form, see Tex.R.App.Proc.

52.3, there are more substantive reasons why it must be denied.


       We first consider our jurisdiction to act on relator’s request. Relator apparently

seeks the records to assist him with his pursuit of post-conviction relief. Under Article

11.07 of the Code of Criminal Procedure, post-conviction writs of habeas corpus in felony

cases are returnable to the Court of Criminal Appeals. Tex. Code Crim. Proc. art. 11.07 §3

(Vernon Supp. 2003). The Corpus Christi court of appeals recently concluded that it

lacked jurisdiction over a petition similar to that filed by relator. In re Trevino, 79 S.W.3d

794 (Tex.App.–Corpus Christi 2002) (orig. proceeding). In that case, though, the court of

appeals was asked to compel the district court to forward copies of records to the relator

“to assist him in his post-conviction relief efforts.” Id. at 795; see also Escobar v. State, 880

S.W.2d 782, 783 (Tex.App.–Houston [1st Dist.] 1993, no pet.). Here, relator’s petition

simply asks that we direct the district court to hold a hearing and determine whether he is

entitled to the records he seeks.2 We would not presume the outcome of such a hearing,


       2
        There is authority that indigent criminal defendants are generally not entitled to free
clerk’s or reporter’s records from their conviction for the purpose of preparing applications
for post-conviction habeas corpus relief. See, In re Trevino, supra; Escobar, supra. We
need not consider here whether relator is entitled to the records he seeks.

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nor would we even presume that the district court would find that it had jurisdiction to grant

relator’s request. We do not lack jurisdiction, though, to direct that a district court consider

and rule on a motion properly filed and before that court. See In re Christensen, 39 S.W.3d

250 (Tex.App.–Amarillo 2000) (orig. proceeding).


       At this court’s request, the Honorable John B. Board, Judge of the 181st District

Court, has submitted a response to relator’s petition. Judge Board states that his court’s

file does not contain the petition relator claims to have filed, and that he has no

independent recollection of having received such a pleading from relator.


       Mandamus will issue only to correct a clear abuse of discretion or violation of a duty

imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827

S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding). The writ sought by relator here,

directing the consideration of a pleading he has filed with a trial court, would issue only on

a clear showing that the respondent has a legal duty to perform a nondiscretionary or

ministerial act; that he has been requested to perform the act; and that he has refused to

do so. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston [1st Dist.] 1992) (orig.

proceeding) (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)). The relator has

the burden to present the appellate court with a record sufficient to establish the right to

mandamus. Walker, 827 S.W.2d at 837-39. Here, relator has failed to meet that burden.


       Naturally, if relator’s motion was not properly filed with the district court, the court

can have no duty with respect to it. Moreover, even if relator filed such a motion, he has

not provided this court with a record showing that, after he filed the motion, he asked the


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district court for a hearing and a ruling on the motion and the district court refused him such

a hearing and ruling. As in Barnes, the record before us does not reflect that relator has

taken any action to alert the district court that it has not yet considered his motion. Barnes,

832 S.W.2d at 426. Indeed, we have nothing in the record before us to demonstrate that

the district court even was aware of relator’s motion before our request for the court’s

response. We have only the statement in relator’s petition that he filed with his motion a

request to the district clerk for a hearing date. Such a statement falls considerably short

of the record required to demonstrate relator’s entitlement to the extraordinary relief of

mandamus. 3 See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001) (orig.

proceeding); Christensen, 39 S.W.3d at 251; Barnes, 832 S.W.2d at 426.


       The petition for writ of mandamus is denied.


                                                   Per curiam.



       3
         On direct appeal of his conviction to this court, appellant’s challenges included
claims of ineffective assistance of counsel. After addressing each of the alleged
deficiencies shown in the record, we then considered relator’s challenge to the standard
for determining the effectiveness of counsel on direct appeal. He there argued that the use
of a presumption that counsel rendered adequate assistance with respect to any issue not
appearing in the record violated his right to counsel under the sixth amendment to the U.S.
Constitution. Bunch v. State, No. 07-01-171-CR, at 14 (Tex.App.–Amarillo June 3, 2002,
no pet.). This is so, he argued, because the avenue for developing evidence of
ineffectiveness not shown in the record through habeas corpus is inadequate because,
unlike on direct appeal, he would not have assistance of counsel. Id. We noted that this
court is constrained to follow the law as enunciated by the Court of Criminal Appeals,
overruled his challenges, and affirmed his conviction on June 3, 2002. Id. We recognize
that relator’s difficulties with this pro se petition may illustrate the concern he expressed on
direct appeal. We cannot excuse relator from the requirement that he demonstrate
entitlement to the relief he requests, though, simply because he is proceeding pro se. See
In re Chavez, 62 S.W.3d 225, 227 (Tex.App.–Amarillo 2001) (orig. proceeding); Barnes,
832 S.W.2d at 426.

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