                                   NO. 07-11-00051-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                     MARCH 22, 2011


                        IN RE TOMMY DOMINGUEZ, RELATOR


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Relator, Tommy Dominguez, has filed a Petition for Writ of Mandamus requesting

this Court issue mandamus to compel respondent, the Honorable William D. Smith, “to

perform his ministerial duty, to abide with T.C.C.P. Art. 26.052(e), and in the alternative,

that this cause be remanded to the Trial Court for trial on its merit.” By his petition,

Dominguez complains that, in 1997, he was tried for capital murder and that the State

sought the death penalty, and the trial court abused its discretion when it failed to

appoint two attorneys to assist him. See TEX. CODE CRIM. PROC. ANN. art. 26.052(e)

(West Supp. 2010).1 We deny the petition.



       1
         While the current version of art. 26.052(e) does provide that the trial court shall
appoint two attorneys to represent a capital murder defendant when the State seeks
imposition of the death penalty, the version of the statute that was in effect at the time of
Dominguez’s trial and that established the trial court’s duty in Dominguez’s trial provided
that the trial court shall appoint lead counsel and “shall appoint a second counsel to
assist in the defense of the defendant, unless reasons against the appointment of two
counsel are stated in the record.” Acts of 1995, 74th Leg., R.S., ch. 319, § 2, 1995
       Mandamus is an extraordinary remedy that will issue only if (1) the trial court

clearly abused its discretion, and (2) the party requesting mandamus relief has no

adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135-36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). As the party

bearing the burden of proof, a relator must provide a sufficient record to establish his

entitlement to mandamus relief. See Walker, 827 S.W.2d at 837.


       Texas Rule of Appellate Procedure 52.32 identifies the requirements for a petition

for writ of mandamus filed in this Court. While Dominguez’s petition generally complies

with these requirements, it is deficient in one significant respect. Rule 52.3(g) requires

the petition include a statement of facts supported by citation to competent evidence

included in the appendix or record, and Rule 52.3(k)(1)(A) requires that the appendix to

the petition include a certified or sworn copy of any order complained of, or other

document showing the matter complained of. Dominguez has not included an appendix

to his petition nor has he filed a copy of the record from the capital murder trial of which

he now complains. As such, Dominguez has failed to provide this Court with a sufficient

record to allow us to assess the merits of Dominguez’s claim that the trial court clearly




Tex.Gen.Laws 319 (amended 2009) (current version at TEX. CODE CRIM. PROC. ANN. art.
26.052(e)) (emphasis added). Thus, even were we to assume that Dominguez was
appointed only one attorney to represent him in his capital murder trial where the State
sought the death penalty, Dominguez’s failure to provide the record from that trial
precludes this Court from determining whether the trial court stated reasons against the
appointment of two attorneys in the record.
       2
       Further citation of Texas Rules of Appellate Procedure will be by reference to
ARule __.@

                                             2
abused its discretion or violated a duty imposed by law. See Walker, 827 S.W.2d at

837.


       As Dominguez has failed to meet his burden to establish entitlement to the relief

he seeks, we deny the petition.




                                                      Per Curiam




                                           3
