                                  NO. 07-02-0074-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                     JUNE 11, 2002

                         ______________________________


                            IN RE: DANNIE LEE MITCHELL

                       _________________________________

                             ORIGINAL PROCEEDING
                        _______________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.


      Relator Dannie Lee Mitchell seeks issuance of a writ of mandamus directed to

respondent, the Honorable Bradley S. Underwood, Judge of the 364th District Court of

Lubbock County, directing respondent to set aside relator’s judgment of conviction for

robbery. We deny the application for writ.


      Relator’s application for writ of mandamus alleges that he was indicted on or about

January 11, 1993, for robbery, and that pursuant to a plea bargain he was found guilty and

sentenced to 25 years in the Texas Department of Corrections on January 19, 1993. The

application further alleges, in part, that (1) relator received ineffective assistance of

counsel from his court-appointed attorney in connection with his plea bargain because

relator’s appointed counsel made only a pro forma appearance and relator thus effectively
received no assistance of counsel at the plea proceedings, (2) respondent signed a

document appointing the attorney who attended appellant’s plea proceedings by mistake,

(3) respondent has the power to correct the judgment of conviction after the trial court lost

plenary power over the judgment because the mistaken appointment of counsel for

appellant was a clerical error when respondent had no intention of appointing counsel for

appellant, (4) respondent’s actions denied relator his right to counsel, and (5) relator did

not knowingly and intelligently waive his right to counsel. Relator prays that this court

direct respondent “to grant motion for nunc pro tunc, and set aside/dismissal [sic] of said

cause that relator is incarcerated for.”


       A writ of mandamus is an extraordinary remedy that will issue only to correct a clear

abuse of discretion or the violation of a duty imposed by law when there is no other

adequate remedy by law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305

(Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992). To establish an

abuse of discretion, the complaining party must demonstrate that the trial court acted

unreasonably, arbitrarily, or without reference to guiding rules and principles. See Downer

v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985). It is the relator’s burden

to show entitlement to the relief being requested, see generally Johnson v. Fourth District

Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding), and that relator has

no adequate remedy at law. See In re Nolo Press/Folk Law Inc., 991 S.W.2d 768, 776

(Tex. 1999). If relator’s asserted error is reviewable via a habeas corpus proceeding, then

a legal remedy is available and mandamus will not lie. See Tex. Crim. Proc. Code Ann.



                                             2
art. 11.07 (Vernon 2002); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243

(Tex.Crim.App. 1991). Relator must file with the petition a certified sworn copy of every

document that is material to the relator’s claim for relief and that was filed in any

underlying proceeding and a properly authenticated transcript of any relevant testimony

from any underlying proceeding including any exhibits offered in evidence, or a statement

that no testimony was adduced in connection with the matter about which complaint is

made. TEX . R. APP . P. 52.7(a). An appellate court may not resolve factual disputes in an

original mandamus proceeding. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d

712, 714 (Tex.1990); In re Jones, 978 S.W.2d 648, 652 (Tex.App.--Amarillo 1998, orig.

proceeding).


       According to well established principles, we are unable to grant relief based on

relator’s petition for several reasons. We set out some of those reasons hereafter.


       The allegations that respondent mistakenly appointed counsel for appellant and that

appointed counsel rendered ineffective assistance involve the resolution of factual

questions. See, e.g., Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (a

defendant asserting ineffective assistance must present a record with evidence proving

the alleged ineffective assistance and a silent record does not present such proof); Ex

parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997), citing Hill v. Lockhart, 474 U.S.

52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (when a defendant contends that his counsel

was ineffective and thereby challenges the voluntariness of a plea entered upon the advice

of counsel, the voluntariness of the plea is determined by (1) whether, in giving the advice,


                                             3
counsel conducted himself within the range of competence required of attorneys in criminal

cases and if not, (2) whether a reasonable probability exists that, but for counsel's errors,

the defendant would not have entered the plea, but would have insisted on going to trial).

And, we may not resolve factual questions via a mandamus proceeding. See Brady, 795

S.W.2d at 714. Moreover, relator (1) has not provided a record of the plea proceedings

even if we could resolve factual disputes, see Johnson, 700 S.W.2d at 917; (2) has not

averred that no testimony was taken at the plea proceeding, see TRAP 52.7(a); (3) has not

presented documents demonstrating that his request for entry of a nunc pro tunc judgment

has been presented to respondent, see id; and (4) has the legal remedy of habeas corpus

available. See Ater, 802 S.W.2d at 243.


       Accordingly, we conclude that relator’s petition for a writ of mandamus directing

respondent to enter a nunc pro tunc dismissal of the judgment of conviction must be and

is denied.




                                                  Phil Johnson
                                                    Justice

Do not publish.




                                             4
