                                NUMBER 13-11-00485-CR

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                                 IN RE BOBBY KISER JR.


                            On Petition for Writ of Mandamus.


                                MEMORANDUM OPINION

                    Before Justices Benavides, Vela, and Perkes
                        Memorandum Opinion Per Curiam1

       Relator, Bobby Kiser Jr., proceeding pro se, filed a petition for writ of mandamus

and ―Motion for the Suspension of Rules‖ on July 20, 2011, through which he seeks to

compel the trial court clerk to receive and file various post-judgment motions. According

to allegations in the petition, relator was convicted of theft pursuant to a plea bargain on

February 7, 2011. Relator contends that he mailed the following documents to the trial

court clerk on the stated dates without receiving any response: ―Defendant’s Motion to

Vacate Judgment‖ on April 28, 2011; ―Defendant’s Motion to Await Disposition of Ruling,
       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).


                                                  1
―Defendant’s Written Notice of Appeal,‖ and ―Defendant’s Motion for Permission in

Leave,‖ on May 26, 2011; and an ―official letter‖ asking for information on any of his

motions and appeal on June 6, 2011. Relator seeks an order directing the trial court

clerk to file relator’s motions, set them for hearing, and transmit his appeal to the

appropriate court. We dismiss this original proceeding as stated herein.

                                 I. STANDARD OF REVIEW

       To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is 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). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied.        See id.     In addition to other requirements, relator

must 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).

                                       II. ANALYSIS

       By his ―Motion for the Suspension of Rules,‖ relator seeks to ―allow his Writ of

Mandamus without the proper form and contents.‖ We deny this motion, because even

though relator is appearing pro se, it is his burden to properly request and show



                                             2
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 this

regard, relator’s petition for writ of mandamus lacks a certification and required

documentation in his appendix and record. We note, for instance, that the record before

us fails to contain the judgment of conviction or any certification of defendant's right of

appeal.

       More saliently, however, this Court does not have mandamus jurisdiction over

clerks unless it is shown that issuance of the writ is necessary to enforce our

jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a), (b) (West 2004); In re Smith, 263

S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding); In re

Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig.

proceeding); In re Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998, orig.

proceeding); see also In re Nubine, No. 13-08-507-CV, 2008 Tex. App. LEXIS 6534, at

*1 (Tex. App.—Corpus Christi Aug. 27, 2008, orig. proceeding) (per curiam) (mem. op).

For instance, mandamus relief is appropriate when a trial court clerk fails to file and

forward a notice of appeal to the appropriate court of appeals. In re Smith, 270 S.W.3d

783, 785 (Tex. App.—Waco 2008, orig. proceeding); Smith, 263 S.W.3d at 95-96;

Washington, 7 S.W.3d at 182; see also Aranda v. District Clerk Clerk, 207 S.W.3d 785,

786-87 (Tex. Crim. App. 2006) (orig. proceeding) (per curiam) (granting mandamus

relief where district clerk failed to file post-conviction habeas application). However,

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

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



                                            3
from otherwise final felony convictions or matters relating to out-of-time appeals. See

TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3 (West Supp. 2010); Ex parte Garcia, 988

S.W.2d 240, 241 (Tex. Crim. App. 1999); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.–

Houston [1st Dist.] 2001, orig. proceeding).

                                     III. CONCLUSION

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

mandamus, is of the opinion that we lack jurisdiction to consider this matter.

Accordingly, the petition for writ of mandamus is DISMISSED for want of jurisdiction.

See TEX. R. APP. P. 52.8(a).




                                                   PER CURIAM

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

Delivered and filed this the
4th day of August, 2011.




                                               4
