                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00217-CR
        ______________________________



          IN RE: CURLEY JEFFERSON




          Original Mandamus Proceeding




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                         MEMORANDUM OPINION

         Curley Jefferson has filed a petition for writ of mandamus seeking various records,

pleadings, and evidence, but without specifying the person or persons against whom he would

have us issue such a writ. Because he has not established that any district or county court has

failed in doing a required ministerial act, we deny Jefferson’s petition.

         Jefferson originally filed a petition for writ of mandamus with the Texas Court of Criminal

Appeals. 1     That court denied his petition without a written order.                       In re Jefferson, No.

WR-74,910-01 (Tex. Crim. App. Nov. 10, 2010) (orig. proceeding [leave denied]) (without

opinion).2 In the petition to this Court, Jefferson states he had previously filed a petition for writ

of mandamus with the Texas Court of Criminal Appeals and that he now sends ―this Original

Application‖ for writ of mandamus and forwards ―the same request for petition‖ to this Court.

We will presume Jefferson intended to incorporate his complaints in his original petition for writ

of mandamus into the petition for writ of mandamus with this Court. Neither petition, though,




1
 Both petitions, the one filed with the Texas Court of Criminal Appeals and the one filed with this Court, are styled as
being in the ―County Criminal Court No. 276 Marion County, Texas.‖ This Court takes judicial notice that the 276th
Judicial District Court’s jurisdiction includes Marion County. Jefferson’s petition for writ of mandamus clearly
indicates he is requesting relief from an appellate court, despite being styled as being before the district court. The
original petition ―prays that the Court of Appeals grant his MANDAMUS. . . .‖
2
 In Jefferson’s petition for writ of mandamus to this Court, Jefferson states the Texas Court of Criminal Appeals
denied his petition citing Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (―We hold that when a
court of appeals and this court have concurrent, original jurisdiction of a petition for a writ of mandamus against the
judge of a district or county court, the petition should be presented first to the court of appeals unless there is a
compelling reason not to do so.‖). Although the postcard from the Texas Court of Criminal Appeals cited Padilla,
the Texas Court of Criminal Appeals did not issue an opinion in denying Jefferson’s petition.

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clearly specifies against whom Jefferson is seeking relief. In his original petition, Jefferson prays

relief be granted for the following:

        1. The record of the grand jury selection, including; age, race, and sex
        2. The records of the grand jury instruction, disclosures’, and transcripts
        3. The records (copies) of indictments for Curley Jefferson and Kelvis Brannon
        4. The record (copy) of the arrest warrant case # 09-46-136
        5. The record of probation; Fees paid, hours completed and probationers monthly
        summery notes
        6. The accurate records of Transcripts’ and a copy of the recorded audio
        7. Copy of PDR, filed by attorney, and a copy of the motion to suppress attorney
        filed
        8. The evidence requested but never given in the Motion for Discovery filed July
        21, 2009
               A. (1) Police reports: (4) Game Warden: Rob Furlow, (6) CI sworn
               affidavit
               B. (2) Pictures, Photos, & Communication Evidence: Police compliant no.
               # 09-46-136
                       1. (A) Pictures of all evidence seized SEE: (8) and (1-9) in motion
                       for records all suspected narcotics. Where Jayson states
                       ―Photographs of all the items were taken in the location they were
                       found‖ and the pictures of 2. Tanita model 1479 digital scale and
                       Fw-250 Digital scale taken in the location they were found

(Errors in original).

        To be entitled to mandamus relief, a relator must show that he or she has no adequate

remedy at law to redress the alleged harm and that he or she seeks to compel a ministerial act, not

involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of

Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). An act is

ministerial if it constitutes a duty clearly fixed and required by law. State ex rel. Curry v. Gray,

726 S.W.2d 125, 128 (Tex. Crim. App. 1987).


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       To the extent Jefferson’s petition could be interpreted to seek relief against parties other

than a district court, we lack jurisdiction to grant his request. Presumably all of these records

would be in the custody of the District Clerk of Marion County, and this Court does not have

mandamus jurisdiction over district clerks. In re Rodriguez, No. 06-08-00122-CV, 2008 Tex.

App. LEXIS 7972 (Tex. App.—Texarkana Oct. 22, 2008, orig. proceeding) (mem. op.); In re

Coronado, 980 S.W.2d 691, 692–93 (Tex. App.—San Antonio 1998, orig. proceeding) (per

curiam) (for district clerk to fall within jurisdictional reach of court of appeals, must establish that

mandamus is necessary to enforce court of appeals’ jurisdiction). This Court’s mandamus

jurisdiction, except when necessary to enforce our jurisdiction, is limited to district courts or

county courts. TEX. GOV’T CODE ANN. § 22.221 (Vernon 2004). To the extent Jefferson seeks

relief against parties other than the district court, we deny his request.

       To the extent that Jefferson complains about the district court denying one or more motions

seeking records, Jefferson has failed to establish the trial court had a ministerial duty to grant his

request. A ministerial act is one which is to be accomplished without the exercise of discretion or

judgment.    Curry, 726 S.W.2d at 128.           Deciding how to rule on a motion requesting

discretionary relief is not a ministerial act. Id.; In re Birdwell, 224 S.W.3d 864, 865 (Tex.

App.—Waco 2007, orig. proceeding); see Buntion v. Harmon, 827 S.W.2d 945, 947 n.2 (Tex.

Crim. App. 1992) (relator must show ―a clear right to the relief sought‖).




                                                   4
         Jefferson requests copies of his indictment, the motion to suppress, and motion for

discovery.3 An indigent criminal defendant has a right to receive, while pursuing a direct appeal,

one copy of the appellate record without payment. TEX. R. APP. P. 20.2; Ex parte Trainer, 181

S.W.3d 358 (Tex. Crim. App. 2005). Jefferson was appointed an attorney to represent him on

appeal. Jefferson’s attorney filed an appeal raising several points of error and also filed a petition

for discretionary review, which was refused. See Jefferson v. State, No. 06-09-00149-CR, 2009

Tex. App. LEXIS 9407 (Tex. App.—Texarkana Dec. 11, 2009, pet. ref’d). The mandate was

issued May 17, 2010. Even if Jefferson has been declared indigent, he has failed to establish that

neither he nor his appellate attorney were provided with a free copy of the record on direct appeal.

Jefferson has failed to establish he is entitled to an additional copy of the record after the direct

appeal has been concluded. See Trainer, 181 S.W.3d 358.

         Jefferson’s remaining requests are essentially requests for discovery after the resolution of

his direct appeal.        Jefferson alleges these documents are needed to prosecute his appeal.

However, Jefferson’s direct appeal has been resolved and this Court’s mandate has issued.

Further, Jefferson does not allege he is entitled to the documents as discovery under Article 11.07

of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon

Supp. 2010). The Texas courts have recognized that ―the exclusive post-conviction remedy in


3
 Jefferson also requests ―accurate records of transcripts.‖ Jefferson is not complaining that he failed to receive a copy
of his appellate record. Jefferson is complaining that the appellate record is not accurate—not that he failed to receive
the reporter’s record.

                                                           5
final felony convictions in Texas courts is through a writ of habeas corpus pursuant to TEX. CODE

CRIM. PROC. art. 11.07.‖ Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); accord

In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana 2006, orig. proceeding). Jefferson

has failed to demonstrate the trial court had a ministerial duty to grant his motion.

       For the reasons stated, we deny Jefferson’s petition for writ of mandamus.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        December 16, 2010
Date Decided:          December 17, 2010

Do Not Publish




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