                                    NO. 07-04-0296-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JUNE 23, 2004

                          ______________________________


                     IN RE CHRISTOPHER W. BUNCH, RELATOR
                         _______________________________

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


                               MEMORANDUM OPINION


       This original proceeding is relator Christopher W. Bunch’s second attempt to obtain

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 so that he may use it to prepare a writ of habeas corpus. For the reason set out

below, we deny relator’s request.


       In 2001 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. This court affirmed that

conviction on direct appeal. Bunch v. State, No. 07-01-0171-CR (Tex.App.–Amarillo June

3, 2002, pet. ref’d). In March 2003 relator filed a petition for writ of mandamus asserting

he had filed a motion in the 181st District Court in December 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. In re Christopher W. Bunch, No. 07-03-

0103-CV (Tex.App.–Amarillo May 16, 2003) (orig. proceeding). The petition sought a writ

of mandamus directing the 181st District Court to conduct a hearing on his motion. We

denied the petition for the reason that appellant did not establish respondent failed or

refused to perform a nondiscretionary or ministerial act after a proper request because

nothing in the record showed the motion was properly filed in the 181st District Court or

brought to the attention of the trial judge. Id.


       Relator’s present petition requests the same relief, directing the judge of the 181st

District Court to “set and hold a hearing in cause No. 13,131-B” on his motion requesting

access to the trial record in that cause for the purpose of preparing a writ of habeas

corpus.1 It also suffers from the same deficiencies as his 2003 petition.


       The petition recites relator sent his requests for access to the trial court records to

“the Randall County District Court and Clerks office.” It also makes reference to an

appendix. Enclosed with relator’s petition were copies of letters addressed to the 181st

District Court, the district court clerk, and the clerk of this court. The undated and unsigned

letter to the clerk of this court says relator’s motion was enclosed, requesting a free copy

of the trial court records or for loan of those records with a request that it be filed in the

records of his original appeal, Number 07-01-0171-CR. No copy of the motion was



       1
        Relator has also filed a Motion for Leave to File Petition for Writ of Mandamus. We
need not address this motion because under the current Rules of Appellate Procedure no
leave to file is required. See Tex. R. App. P. 52.1.

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enclosed. It also asked the clerk to “provide the court with a hearing date” to dispose of the

motion. Parenthetically, we note that this court has no record of receiving a letter from

relator like that enclosed with his petition, or a motion like that described in the letter.


       Relator’s letter to the district court clerk that accompanies relator’s petition also says

the motion at issue was enclosed, requested the motion be filed under cause number

13,131-B, and asked the clerk to “provide the court with a hearing date for a hearing to

dispose of the motion.” The letter addressed to the district court is signed but undated and

only makes reference to his letter to the clerk of this court, stating “I am now requesting that

the appellate record be made available to me so that [I] may prepare my [article] 11.07 writ

of habeas corpus.” (emphasis added). None of these documents bear any file mark other

than those made on the filing of the current petition in this court.


       As with relator’s first petition, the present petition fails to comply with the procedural

requirements of Rule of Appellate Procedure 52.3 and must be denied on that basis. See

In re Chavez, 62 S.W.3d 225, 227-28 (Tex.App.--Amarillo 2001) (orig. proceeding).


       Even if we were to ignore the verification requirements of Rule 52.3(j)(1) and treat

the letters enclosed with relator’s petition as accurately reflecting documents sent to those

entities, they would not satisfy relator’s burden to show respondent clearly abused his

discretion by establishing he 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)).


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       As noted, we are not provided with a copy of the motion relator’s letters describe,

nor with information demonstrating when such a motion was filed. Further, the documents

contain no request to the district court for a hearing. The letter to the district court merely

referred to his letter to this court asking for access to “the appellate record.” It makes no

reference to the motion relator asserts is pending in the district court and cannot be read

as a request for any action in that court. See Barnes, 832 S.W.2d at 426. This record still

falls considerably short of the record that would be required to demonstrate relator’s

entitlement to the extraordinary relief of mandamus. Chavez, 62 S.W.3d at 228.


       For that reason also, relator’s petition for writ of mandamus is denied.




                                                    Per Curiam




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