                                 NUMBER 13-16-00363-CR

                                     COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                               IN RE PATRICK S. GUILLORY


                             On Petition for Writ of Mandamus.


                                  MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Garza and Longoria
                         Memorandum Opinion Per Curiam1

        Relator, Patrick S. Guillory, proceeding pro se, filed a petition for writ of mandamus

in the above cause on July 11, 2016, seeking to obtain the clerk’s record and reporter’s

record from his conviction for the purposes of preparing a post-conviction writ of habeas

corpus. This Court affirmed appellant’s conviction for theft, enhanced by two prior felony

convictions to a second-degree felony. Guillory v. State, No. 13-14-00096-CR, 2015 WL

6593846, at *1 (Tex. App.—Corpus Christi Oct. 29, 2015, no pet.) (mem. op., not



        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).


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designated for publication); see TEX. PENAL CODE ANN. § 31.03(a), (b), (e)(4)(D) (West,

Westlaw through 2015 R.S.).

       To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

the relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

       A remedy at law, though it technically exists, "may nevertheless be so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648–

49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled must be a

ministerial act that does not involve a discretionary or judicial decision. State ex rel.

Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the relator can

show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A

clear right to relief is shown when the facts and circumstances dictate but one rational

decision "under unequivocal, well-settled (i.e., from extant statutory, constitutional, or

case law sources), and clearly controlling legal principles." Bowen v. Carnes, 343 S.W.3d

805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks, 391 S.W.3d at 122.

       It is relator’s burden to properly request and show entitlement to mandamus relief.

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

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled

to the extraordinary relief he seeks.”). In addition to other requirements, relator must



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include a statement of facts supported by citations to “competent evidence included in the

appendix or record,” and must also provide “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the appendix or record.”

See generally TEX. R. APP. P. 52.3. In this regard, it is clear that relator must furnish an

appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k)

(specifying the required contents for the appendix); R. 52.7(a) (specifying the required

contents for the record).

       Although courts of appeals have jurisdiction in criminal matters, only the Texas

Court of Criminal Appeals has jurisdiction over matters related to final post-conviction

felony proceedings. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (West, Westlaw

through 2015 R.S.); Padieu v. Ct. of App. of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex.

Crim. App. 2013) (orig. proceeding) ( “It is well established that only the Court of Criminal

Appeals possesses the authority to grant relief in a post-conviction habeas corpus

proceeding where there is a final felony conviction.”); Board of Pardons & Paroles ex rel.

Keene v. Ct. of App. of Tx., Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995)

(“Article 11.07 provides the exclusive means to challenge a final felony conviction.

Jurisdiction to grant post-conviction habeas corpus relief on a final felony conviction rests

exclusively with [the Court of Criminal Appeals].”).      The Court of Criminal Appeals'

exclusive jurisdiction under article 11.07 does not necessarily, however, divest the courts

of appeals of jurisdiction to decide the merits of a mandamus petition when the relator

has no article 11.07 application pending. See Padieu, 392 S.W.3d at 117–18.

       In this case, relator has not furnished this Court with a record or appendix in

support of his petition for writ of mandamus, and accordingly, has not met his burden to



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establish that the trial court has failed to act appropriately with regard to relator’s request

for the record. Further, an indigent defendant is not entitled either as a matter of equal

protection or of due process to a free transcription of prior proceedings for use in pursuing

post-conviction habeas corpus relief. United States v. MacCollom, 426 U.S. 317, 322–

23 (1976); Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993,

no pet.); see also In re Jones, No. 05-16-00001-CV, 2016 WL 279432, at *1 (Tex. App.—

Dallas Jan. 22, 2016, orig. proceeding) (mem. op., not designated for publication).

       The Court, having examined and fully considered the petition for writ of mandamus

and the applicable law, is of the opinion that relator has not met his burden to obtain

mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly, relator’s

petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).

                                                   PER CURIAM

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of July, 2016.




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