           PD-0897-15

         IN THE SU?REME COURT OF TEXAS

                    AUSTIN, TEXAS

                  NO. -:"                              FILED
                                                 IN SUPREME COURT
                   IN RE                             OF TEXAS

           BRYAN CHANCE MCBEE                       JUL 16 2015
                 APPEAL-FROM
                                               BLAKE HAWTHORNE, Clerk
                                           BY PATRICK D. PASSMORE, Deputy
            COURT OF APPEALS

   NINTH DISTRICT OF TEXAS AT BEAUMONT

           NO.   09-15-00179-CR

     Trial Court No.   13-04-03591-CR

221st District Court of Montgomery County
              Conroe, Texas




           PETITION FOR REVIEW




                            Bryan Chance McBee

                            Petitioner
                            200 Lee Morrison Lane
                            Bryan, Texas 77807




REQUEST FOR A HEARING IN LEAVE TO PROCEED
                  IDENTITY OF PARTIES   AND COUNSEL

Bryan Chance McBee                                    Petitioner
200 Lee Morrison Lane Hamilton
Bryan, Texas 77807

Respondents

Judge Lisa Michalk, 221st District Court of Montgomery, County
207 W. Phillips St., Ste, 300
Conroe, Texas 77301

Natalie Traylor, Assistant Coordinator
Jennifer Wade 221st District Court of Montgomery County,
207 W. Phillips St. Ste. 300
Conroe, Texas 77301

McKeithen, C.J., Kreger and Johnson, JJ.,
Ninth Court of Appeals
1001   Paerl
Beaumont, Texas

Montgomery District Attorney's Office
207 W. Phillip St.
Conroe, Texas 77301
                           CONTENTS   OF PETITION                       PAGE

Identity of parties and counsel

Table of Contents                                                   1

Index of Authorities                                                11,111

Statement of the case                                               1,2

Statement of jurisdiction                                           2,3

Issues presented                                                    2

   Whether there is a conflict between the courts of appeals
   on an important point of law

   Whether the Court of Appeals had authority to review an extra
   ordinary remedy on its own motion the court took notice sua
   sponte that it lacked kurisdiction over the case

   Whether   it is   an abuse of discretion   for   the   trial court
   has an official duty to manage the court supervision

Statement of facts                                                 2,3

Summary of the argument                                            3, 4
Argument                      4,5,6,7,8,9,10,11,12,13,14
Prayer                                                             13,14
Certificate of   Service                                           14
                                                                   14
Verification

Appendix
                       INDEX OF    AUTHORITIES                   PAGE

CASES


Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.1991)13

Boddie v. Connecticut, 91 S.Ct. 780 (1971)                         7

Callahan v. Giles, 131 Tex. 571, 155 S.W.2d 793, 795 (194 ) 10

Canadian Helicopter Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994)10
Creel v. District Atty. for Medina County, 818 S.W.2d 45, 46
                                                   (Tex.1991)      10

Eniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.1987)           10
Ex parte Harrington, 310 S.W.3d 452     (Tex.Crim.App.2010)        11
Ex parte Lockett, 956 S.W.2d 41, 42 (Tex.Crim.App.1993)            11
In re Davidson, 153 S.W.3d 490, 491 (Tex.App.-Amarillo 2004)9
In re McAllen, 275 S.W.3d at 464                                   12

In re Reece, 341 S.W.3d 360 (Tex.2011)                             12

In re Reprudential Ins. Co. of Am. 148 S.W.3d 124 (Tex.2004)12

Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993)            11
Metzer v. State, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.]
                                                             1994) 9

Mattox v. Grimes County Com'er Court, 305 S.W.3d 375 (Tex.              13

                                          App. -HoustonC{:14tIV:Distr. ]2010)
M.L.B. v. S.L.J., 117 S.Ct. 555 (1996)                             7

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1980)11
Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115,

                                     117-18 (Tex.Crim.App.2013)8
Rivercenter Assoc, v. Rivera, 858 S.W.2d 366, 367 (Tex.1993)19

State ex rel. Curry v. Gray^ 726 S.W.2d 125, 128 (Tex.Crim.App.
                                                     1987)         10
stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979)               8
Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992)              10
Westerman v. Mims, 111 Tex.29, 227 S.W. 178, 181 (1921)       10
White v. Reiter, 640 S.W.2d 586, 596 (Tex.Crim.App.1982)      10
RULES   AND   STATUTES

Government Code § 51.606                                       1
                    § 22.221 (a)(b)(c)              2,10.11

                    § 52.047 (a)(l)(2)                         6

                    § 411.194 (a)(b)(c)                    .6,7

Code of    Criminal Procedure

Article 11.07                                                     H

Article 11.07, §§ 2,3                                          6
Rules of Appellate Procedure

Rule 9.5                                                          8

Rule 20                                                           6

Rule 34.5(g)                                                      6
Rule 34.6(h)                                                      6
Rule 52.7(a)(1)                                                   8
Rule 53.2                                                     2




                                          in
                      STATEMENT   OF       THE   CASE

   This is a case in seeking a petition for writ of mandamus

to issue an Order on the trial court judge to direct the court

coordinator to docket this motion for Intra Loan of the Appellate
Records that has been filed with the Court by the Clerk. The Court

Coordinator has refused to set the matter for a hearing.
   Bruan Chance McBee appeals from his third-degree felony conviction
for assault on a family member. See Tex.Penal Code Ann.§22.01(a)(1),
(b)(2) (West Supp.2013). The jury found McBee guilty and assessed
punishment at eight years in prison. McBee was convicted of assault

ing T.P., a 47 year old female.

   Respondent is a judge Lisa Michalk, 221st Judicial District

Court of Montgomery County, Texas, 207 W.Phillips St., Ste 300,
Conroe, TX 77301

   Respondent Natalie Traylor, Assistant District Coordinator,

Jennifer Wade of the 221st Judicial District Court of Montgomery

County, Texas 207 S.Phillips St., Ste 300, Conroe, TX 77301

   The Respondents has failed to set the pleadings for a hearing
on a motion to compel a ministerial act, not involving a discre

tionary or judicial decision. The Clerk's Office filed the Motio

To Compel on March 2, 2015, for the Court Coordinator to document

the matters for hearing to allow the Clerk to bring the file

to the trial court on the date of the hearing for an in chambers

ruling, to allow the Relator the right for Intra Loan of the

trial Clerk's records to be mailed to the Hamilton Unit Law Library
Supervisor for checking out to the offender to review them for

2 hour- sessions Monday through Saturday for 30 days to prepare
                                       1
his petition.

   The Ninth Court of Appeals issued the Original Opinion on

April 9, 2014. Before McKeithen, C.J., Kreger and Johnson, JJ.,

in No. 09-13-00232.-CR On Appeal from the 221st District Court

Montgomery County, Texas Trial Court Cause No. 13-04-03591-CR.
                    STATEMENT OF   JURISDICTION


   This Court has jurisdiction pursuant to Government Code §
22.221(a)(b)(c); Rule 53.2 Rules of Appellate Procedure.
   Courts will issue mandamus   to correct a clear abuse of dis

cretion or the violation of a duty imposed by law when there

is no other adequate remedy available by appeal.

   This Supreme Court has jurisidction to review the Ninth Court

of Appeals Opinion decided on May 26, 2015.
                         ISSUED PRESENTED

       Whether there is a conflict between the courts of appeals

                  on an important point of law

      Whether the Court of Appeals had authority to review an

                       extraordinary remedy

on its own motion the court took notice sua sponte that it lacked

                   jurisdiction over the case

       -Whether it is an abuse of discretion for the trial court

      has an official duty to manage the court supervision

                        STATEMENT OF   FACTS


   The Clerk filed the Motion To Compel the Court Coordinator

to these matters for a In Camera hearing on March 2, 2015, it

has been pending over 30 days and no hearing has been documented
as requested in a timely manner. Generally, a document is considered

"filed when it is tendered to the clerk, or otherwise put under
the custody or control of the clerk." A party seeking mandamus
relief must show that (1) the trial court had a legal duty to

act, (2) there was a demand for performance, and (3) there was
a refusal to act. The trial judge is the supervisor over his

court   to make   sure   that   all duties   are conducted in an ministrerial

performance. These duties where neglected or refused by the court

personnel or under the authority of the trial judge per se.

                          SUMMARY OF THE AURGUMENT

   Trial court has discretion to change its mind about interlocutory

orders so long as that change does not deprive a party of the

opportunity to litigate the determinative issues in the case.

"[A]s a general rule, the appellate courts, including this Court,
should afford almost total deference to a trial court's determina

tion of the historical facts that the record supports especially

when the trial courts fact findings are based on an evaluation

of credibility and demeanor.

   To ensure that mandamus remains extraordinary remedy, petitioners

must show that they lack adequate alternative means to obtain

relief they seek, and carry burden of showing that their right

to issuance of writ is clear and indesputable.

   Verification is contained in the petition does qualify Inmate

Litigation is a question of fact containing a challenge to receiving

access to the Clerk's records to present the supporting facts

to his claim are on file in the Court's record is entitled to
leniency subject to supplement, subpeona of the records to be

made available to the Courts on review per se. To apply a higher

standard of review on the offender is considered a denial of

access of a full review of   the merits of   the claim for review

for a fact finding process. That would allow the Courts to gress
at the proof of a material fact issue per se.

     Once jurisidction of an appellate court is invoked, [] exercise

of its reviewing functions is limited only by its own discretion
or a valid restrictive statute.

                               ARGUMENT

     Petitioner presented a series of events that are ministerial

duties of performance of the Court's personnel that is under
a rule to provide access to the courts.Once the authority fails

remedies becames an issue of   law.   Relator seeks mandamus relief

from an alleged refusal by the trial court to rule on the motion
to compel the coordinator to set these matters for a in camera

hearing to allow the Clerk to bring the file to the Court for

a ruling on his Motion For Intra Loan of the Appellate records

of the Court for reviewing through the Hamilton Unit Law Library

in   preparation of his petition to be filed in the trial court.

See Memorandum Opinion Bryan Chance McBee petitioned for a writ

of mandamus compelling the judge of the 221st District Court

of Montgomery County to require the court coordinator to set

for hearing McBee's motion for a loan of the duplicate record
that was prepared for an appeal. See generally Tex.R.App.P. 34.5(g),
34.6(h).
  Petitioner did present his claim in the area of loan of the
record through an agency of the State of Texas Department of
Criminal Justice - Institutional Division Hamilton Unit Law Lib

rary Access to Courts personnel as a supervisor control and main
tain the records under lock and key for the offender to check

out Monday through Saturday session for 2 hours through a control
log 183 sign out logging procedure. Which this procedure has
been available to the offenders through the access to courts

since 1996. This available access is being denied through of

Rules or Procedures that the Court of Appeals has made their

own sua sponte ruling on the facts of their discovery from the
pleadings that where made available to them per se. See supra
Rule 34.5(g) Additional copies of clerk's record in criminal
cases. In criminal case, the clerk's record must be made in -"
duplicate, and in a case in which the death penalty was assessed,
in triplicate. The trial court clerk must retain the copy or
copies for the parties: to use with the court's permission.
   Rules of Appellate Porcedure Rule 36.6(h) Additional copies
of reporter's record in criminal cases. In a criminal case in
which a party requests a reporter's record, the court reporter
must prepare a duplicate of the reporter's record and file it
with the trial court clerk. In a case where the death penalty

was assessed, the court reporter must prepare two duplicates

of the reporter's record.
   In this case the records was prepared by the Clerk and Court
Reporter in Case No. 09-13-00232-CR and an opinion issued April

                                   5
9, 2014. A copy of the records are maintained in the Ninth Court

of Appreals from 25 years and 15 years in the trial court in

Cause No.    13-04-03591-CR.   This   is not a case where   the records

has not been prepared. The situation is where the defendant has

not had the records to prepare his petition for discretionary

review and/or a application for writ of habeas corpus pursuant
to Article 11.07, § 2,3 of the Code of Criminal Procedure.

   Government Code § 52.047. Transcripts

   (a) A person may apply for a transcript of the evidence in
a case reported by an official court reporter. The person must

apply for the transcript in writing to the official court reporter.

The official court reporter shall furnish the transcript to the

person not later than the 120th day after the date the:

   (1) application for the transcript is received by the reporter;
   and

   (2) transcript fee is paid or the person establishes indigency
as provided by Rule 20, Texas Rules of Appellate Procedure.

   Government Code § 411.194. Reduction of Fees Due to Indigency
   (a) Notwithstanding any other provision of this subchapter,
the department shall reduce by 50 percent any fee required for

the issuance of an original, duplicate, modified, or renewed

license under this subchapter if the department determines that

the applicant is indigent.

   (b) The department shall require an applicant requesting a
reduction of a fee to submit proof of indigency with the application

materials.
  (c) For purposes of this section, an applicant is indigent
if the applicant's income is not more than 100 percent of the
applicable income leve established by the federal poverty guidelines

   Government Code § 411.197 Rules

   The director shall adopt rules to administer this subchapter.

   Indigency, The state or condition of a person who lacks the
means of subsistence; extremehardship or neediness; poverty.

   Indigent, A person who is found to be financially unable to
pay filing fees and court costs and is allowed to proceed in
forma pauperis. The Supreme Court has recognized an indigent
petitioner's right to have certain fees and costs waived in divorce
and termination-of-parental-rights cases. Boddie v. Connecticut,
91 S.Ct. 780 (1971); M.L.B. v. S.L.J., 117 S.Ct. 555 (1996).


   Government Code § Prohibited Fees § 51.606

   A clerk is not entitiled to a fee for:

   (1) the examination of a paper or record in the clerk's office;
   (2) filing any process or document the clerk issues that is
returned to court;

   (3) a motion or judgment on a motion for security for costs;or
   (4) taking or approving a bond for costs.
   In the instant case, petitioner is confronted with a question
of f act of a shifting procedure. See Memorandum Opinion indicating:
   McBee does not contend that the trial court retains plenary

power over the criminal case. We issued a mandate of affirmance
in July 2014. See generally McBee v. State, No. 09-13-00232-CR,
2014 WL 1400656, at *5 (Tex.App.-Beaumont Apr. 9, 2014, pet.ref'd)
(mem. op.) (affirming judgment as modified).
   There is no active habeas proceeding; accordingly,   this Court

has mandamus jurisdiction. See Padieu v. Court of Appeals of

Tex., Fifth Dist., 392 S.W.3d 115, 117-18 (Tex.Crim.App.2013).
However, the mandamus petition lacks certified or sworn copies

of "every document that is material to the relator's claim for
relief[.]" See Tex.R.App.P. 52.7(a)(1). McBee suggest he cannot
provide copies of documents because he is a prisoner. McBee also

failed to provide proof of service on the respondent and the

prosecuting attorney. See Tex.R.App.P. 9.5.

   Petitioner prepared a certification at the end of his petition

[that every factual statement in the petition is supported by
competent evidence in the Clerk's record of the 221st District
Court of Montgomery County, Texas. On this 7th day of May 2015.]
   Petitioner had seeked mandamus relief from ah.alleged refusal

by the trial court to rule on the motion to compel the Court

Coordinator to set these matters for a in camera hearing to allow

the Clerk to bring the file to the Court for a ruling on his

Motion For Intra Loan of the Appellate records of the court for

reviewing through the Hamilton Unit Law Library in preparation

of his petition to be filed in the trial court.

   A party seeking mandamus relief must show that (1) the trial
court had a legal duty" to act, (2) there was a demand for perform
ance, and (3) there was a refusal to act. Stoner v. Massey, 586
S.W.2d 843, 846 (Tex.1979). Showing that a motion was filed with
the clerk does not constitute proof that the motion was brought

                                  8
to the attention of the trial court.         In re Davidson, 153 S.W.3d

490, 491 (Tex.App.-Amarillo 2004, orig. proceeding). The trial
court is not required to consider a motion unless it is called

to its attention. Metzer v. State, 892 S.W.2d 20, 49 (Tex.App.-
Houston [1st Dist.] 1994, writ denied. McBee contends: that the
Motion for Intra Loan of the Transcription, records, statements

was mailed to the Court Coordinator Jennifer Wade,             221st District

Court of Montgomery CountyCourthouse on or about January 12,

2015, for setting a hearing and filing it with the Clerk ...

many letters making all attempts to receive communications of

the filing and setting of an in camera hearing for a ruling.

But, relator did not receive a copy returned stamped filed of

the Motion To Compel on March 2, 2015.

   To   the extend McBee   asks   this   Court   to direct   the District

Judge to direct the Court Coordinator to set the matters for

in camera hearing to allow the Clerk to bring the file to the

Court ... at the earliest possible date for a ruling.

   The District Court is the Supervisor over his or her Court

personnel ...

   A party seeking mandamus relief must establish that the party

has no adequate remedy by appeal. Walker v. Packer, 827, 833, 842

(Tex.1992). McBee has demonstrated that he could not challenge
the lack of a ruling and no appeal is available by direct appeal.

   Relator argues that if there has been a clear abuse of discr-

tion and there is no adequate remedy by appeal, mandamus will issue*

   The legislature has prescribed jurisdiction of a court of
appeals to issue writs of mandamus (1) to enforce its jurisdiction.
(2) against judges of district and county courts in the district
of the particular court of appeals. Tex.Gov't Code Ann. § 22.221
(vernon 1988 & Supp.2006). Mandamus is a legal remedy. Westerman
v. Mims, 111 Tex. 29, 227 S.W. 178, 181 (1921), even though equit
able principles apply. Rivercenter Assoc, v. Rivera, 858 S.W.2d
366, 367 (Tex.1993); Callahan v. Giles, 131 Tex. 571, 155 S.W.2d

793, 795 (194 ). 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. Canadian Helicopters Ltd. v. Wittig,
876 S.W.2d 304, 305 (Tex.1994).
   Consideration of a motion properly filed and before a trial

court is ministerial. See White v. Reiter, 640 S.W.2d 586, 596

(Tex.Crim.App.1982). Fundamental requirements of due process
mandate an opportunity to be heard. Creel v. District Atty.for
Medina County, 818 S.W.2d 45, 46 (Tex.1991). Thus, a district
court may be compelled via mandamus to consider and rule on a
pending motion presented to the court. See State ex rel. Curry
v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App.1987). Mandamus, however,
will not issue to compel a particular result in a discretionary

decision on a motion.   Id.: White.   640 S.W.2d at 593-94.

   The applicant for a writ of habeas copus has the burden of
proving his allegations by a preponderance of the evidence. Eniatt
v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006). In reviewing
application, we must review the record evidence in the light
most favorable to the trial court's ruling, and we must uphold
                                       10
that ruling absent an abuse of discretion. Id. We decide whether

a trial court abused its discretion by determining whether the

court acted without reference to any guiding rules or principles,
or in other words, whether the court acted arbitrarily or unreason

ably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993).
A    trial court abuses   its discretion when      its decision   lies   outside

of the zone of reasonable disagreement. Montgomery v. State,

810 S.W.2d 372, 391 (tex.Crim.App.1980) (op.on reh'g).
      Under Article 11.07, a person who files a habeas corpus appli

cation for relief from a final felony conviction must challenge

either the fact or length of confinement. Ex parte Lockett, 956

S.W.2d 41, 42 (Tex.Crim.App.1997). In this case, the question
is whether a person who has discharged his sentence prior to

filing an application, but who continues to suffer collateral

consequences arising from the challenged conviction, is entitled

to     seek post-conviction habeas relief under Article 11.07. Ex

parte Harrington, 310 S.W.3d 452 (Tex.Crim.App.2010).
      Petitioner is   in an area   that   this   Court can assist with    the

circumstances of the mere fact that with out the Clerk's records

a petitioner is unable to support his application and this Court

has the authority to clearly establish a standing to challenge

the     conviction. See Memorandum Opinion Bryan Chance McBee appeals

from his third-degree felony conviction for assault on a family

member. See Tex.Penal Code Ann. § 22.01(a)(1), (b)(2) (West Supp.
2013). The jury found McBee guilty and assessed punishment at
eight years in prison. McBee was convicted of assaulting T.P.,

                                            11
a 47 year old female.

   McBee argues on appeal that the evidence was legally insuffic
ient to support his conviction, and that the trial court abused
its discretion in assessing attorney fees against him. We conclude
the evidence was legally sufficient to support his conviction,
but we otherwise modify the judgment to delete the assessment
of attorney fees against McBee, and we affirm the judgment as
modified.

   This case has a serious problem with ineffective, assistance

of counsel in the trial and appeal and the record will demonstrate
the supporting facts that the appeal was improperly challenged
that is a procedural default in the challenge to the sufficiency
of the "evidence that was wrongful raised pursuant to an area
of law that is incorrect for the standard of review. See In re

Reece, 341 S.W.3d 360 (Tex.2011). Further, Mandamus is an "extraordinary
remedy, not issued as a matter of right, but at the discretion

of the court," in Reprudential Ins. Co. of Am, 148 S.W3d 124 (Tex.
2004) (orig. proceeding). "Mandamus review of significant rulings
in exceptional cases may be essential to preserve important sub
stantive and procedural rights from impairment or loss ..." Id.at
136. Mandamus is a remedy not restricted by "rigid rules" that
are "necessarily inconsistent with the flexibility that is the
remedy's principle virtue." Id:;; See also In re McAllen, 275
S.W.3d at 464 (noting that whether a clear abuse of discretion
can be remedied on appeal "depends heavily on circumstances; it
must be guided by analysis or principle rather than simple rules

                                   12
t!"iat treat cases as categories"), and mandamus is a proper vehicle
for this court to correct blatant injustice that otherwise would

elude review by the appellate court.

     Generally, a party is entitled to mandamus relief against a
public official when there is (1) a legal duty to perform a non-
discretionary act, (2) a demand for performance of that act,
and (3) a refual to perform. Anderson v. City of Seven Points,

806 S.W.2d 791, 793 (Tex.1991). See Mattox v. Grimes County Com'er
Court, 305 S.W.3d 375 (Tex.App.Houston [14th Dist.] 2010). An a^t
is non-discretionary, or ministerial, and subject to mandamus

relief, when the law clearly spells out the duty to be performed

by the official with sufficient certainty that nothing is left
to   the exercise of   discretion.

                                 PRAYER


     For the foregoing reasons, this Court should find that the
Respondent is the Supervior of the 221st District Court of Mont
gomery County, Texas, and that the Motion for Intra Loan of the
trial records has been filed by the Court Coordinator and refused
to document the Motion and the Motion to Compel the Court Coordinator

to set these matters for an in camera hearing for a ruling.

Respondent is direct to set, hear and rule on relator's Motion
to Review the Trial/Appellate Records within a reasonable time.
     WHEREFORE PREMISES AND CONSIDERED Petitioner prays that this

Court will grant petition in leave to proceed on writ of mandamus
by treating the pleadings as petition for review in all things
requested. We anticipate that respondent will comply with in
a reasonable manner by ordering the trial court to rule on Motion
                                      13
to Compel. Or in the alternative grant further relief justly

entitled.

                                   Respectfully submitted,


                                   Bryan Chance McBee TDCJ #1941708
                                   200 Lee Morrison Lane Hamilton
                                   Bryan, Texas 77807


                           CERTIFICATE OF   SERVICE


   I hereby certify that a true and correct copy of the foregoing

instrument Petition for Review has been served on the Clerk of

the Supreme Court of Texas P.O. Box 12248 Austin, Texas 78711-

2248 to make a copy of the same and serve it on the opposing

parties through the District Attorney of Montgomery County 207

W. Phillips Conroe, Texas 77301, on this 12th day of July, 2015.

                                  Bryan Chance McBee

                          VERIFICATION

   I hereby certify that the preparation of the pleadings are

true and correct to the best of my knowledge under the penalty

of perjury.


                                  Bryan Chance McBee




                                   14
                     APPENDIX


Exhibit   A




 fltfMct I/tobitef 7, fay Oof L
£sMx//if A



                                             In The


                                       Court ofAppeals

                            Ninth District of Texas at Beaumont



                                     NO. 09-15-00179-CR




                              IN RE BRYAN CHANCE MCBEE



                                      Original Proceeding


                                 MEMORANDUM OPINION


               Bryan Chance McBee petitioned for a writ of mandamus compelling the

      judge of the 221st District Court of Montgomery County to require the court

      coordinator to set for hearing McBee's motion for a loan of the duplicate record

      that was prepared for an appeal. See generally Tex. R. App. P. 34.5(g), 34.6(h).

      McBee does not contend that the trial court retains plenary power over the criminal

      case.1

               There is no active habeas proceeding; accordingly, this Court has mandamus

      jurisdiction. See Padieu v. Court ofAppeals of Tex., Fifth Dist., 392 S.W.3d 115,

               'We issued a mandate of affirmance in July 2014. See generally McBee v.
      State, No. 09-13-00232-CR, 2014 WL 1400656, at *5 (Tex. App.—Beaumont Apr.
      9, 2014, pet. refd) (mem. op.) (affirming judgment as modified).
117-18 (Tex. Crim. App. 2013). However, the mandamus petition lacks certified or

sworn copies of "every document that is material to the relator's claim for relief[.]"

See Tex. R. App. P. 52.7(a)(1)- McBee suggests he cannot provide copies of

documents because he is a prisoner. McBee also failed to provide proof of service

on the respondent and the prosecuting attorney. See Tex. R. App. P. 9.5.

      The petition nevertheless demonstrates that McBee is not entitled to

mandamus relief because he has not shown that he has a clear and indisputable

right to the requested relief. See In re Williams, No. 09-09-00584-CV, 2010 WL

183861, at *1 (Tex. App.—Beaumont Jan. 21, 2010, orig. proceeding) (mem. op.);

see also In re Cash, No. 06-04-00045-CV, 2004 WL 769473, at *1 (Tex. App.—

Texarkana Apr. 13, 2004, orig. proceeding) (mem. op.) (A trial court has no duty to

rule on "free-floating motions unrelated to currently pending actions.").

      The relator has not shown that he           is   entitled to   mandamus   relief.

Accordingly, we deny the petition for writ of mandamus.

      PETITION DENIED.



                                                                 PER CURIAM


Submitted on May 26, 2015
Opinion Delivered May 27, 2015
Do Not Publish


Before McKeithen, C.J., Horton and Johnson, JJ.
                                          2
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                                                 MONTGOMERY COUNTY, TEXAS
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