                                        NO. 07-90-0230-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL D

                                      APRIL 29, 2008
                             ______________________________

                               TIMOTHY WAYNE CARTER, JR.,

                                                                        Appellant

                                                   v.

                                     THE STATE OF TEXAS,

                                                         Appellee
                           _________________________________

               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 28,148-D; HON. DON EMERSON, PRESIDING
                           _______________________________

                                   Memorandum Opinion
                             _______________________________

Before QUINN, C.J., and CAMPBELL AND PIRTLE, JJ.

        Pending before us are two motions filed by appellant. The first is entitled “Motion

for Nunc Pro Tunc to correct clerical mistakes of fundamental error.” The other bears the

label “Motion to obtain documents and trial records in forma pauperis.”1 For the following

reasons, we deny both.




        1
         Appellant was convicted of robbery in 1990, and he appealed it to this court. W e dism issed the
conviction in January of 1991 and issued m andate in March of 1991.
      Regarding the nunc pro tunc matter, he requests that we direct the trial court and

district clerk to include additional documents in the appellate record. These documents

were purportedly omitted from that record. However, we find the request moot for the

conviction involved arose in 1990. It was dismissed by this court in January of 1991, and

we issued mandate in March of 1991. The appeal having ended years ago, supplementing

the appellate record could not affect the outcome.

      Regarding the motion to obtain his trial records for free, appellant seeks the records

to prepare a petition for habeas relief to the Court of Criminal Appeals. Attempting to

prosecute such a writ evinces that he exhausted his direct appeals. See Ex parte Brown,

662 S.W.2d 3, 4 (Tex. Crim. App. 1983) (stating that one must first exhaust his direct

appeals before invoking art. 11.07). And since his direct appeals have been exhausted,

he is not entitled to a free record. In re McCarty, No. 08-05-0355-CR, 2005 Tex. App.

LEXIS 10197 (Tex. App.–El Paso December 8, 2005, orig. proceeding); In re Trevino, 79

S.W.3d 794, 795-96 (Tex. App.–Corpus Christi 2002, orig. proceeding). Thus, the relief

Carter ultimately seeks from the trial court is not permitted by law, without a showing of

exceptional circumstances, In re Trevino, supra, and we have been cited to no such

circumstances.

      Accordingly, we deny appellant’s motion for a nunc pro tunc judgment and for a free

copy of the record.


                                                Brian Quinn
                                                Chief Justice

Do not publish.



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