                                    NO. 07-03-0553-CV

                              IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                   JANUARY 8, 2004
                           ______________________________

                           In re RONALD T. HARGESHEIMER,

                                                       Relator
                         _________________________________

               Memorandum Opinion on Petition for Writ of Mandamus
                      _______________________________

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

       Pending before the court is the petition for writ of mandamus filed by Ronald T.

Hargesheimer. In it, he questions 1) the advice purportedly received from counsel

involving the waiver of his right to appeal from a plea bargain, 2) the trial court’s purported

refusal to appoint him an attorney apparently to assist him in prosecuting a pending

appeal, and 3) his purported failure to receive a copy of the reporter’s record so he can

pursue “an effective appeal.” Also mentioned is his desire to protect his right to due

process as that right apparently relates to the foregoing matters. We deny the petition for

the following reasons.

       First, it is not signed by the relator. As required by Texas Rule of Appellate

Procedure 9.1(b), a “party not represented by counsel must sign any document that the

party files and give the party’s mailing address, telephone number, and fax number, if any.”

(Emphasis supplied).
        Second, factual statements in the petition must be verified by affidavit. TEX . R. APP.

P. 52.3. To the extent that the relator is an inmate (as he appears to be here), statute

permits him to substitute an unsworn declaration for the affidavit. TEX . CIV. PRAC . & REM .

CODE ANN . §132.001(a) (Vernon 1997). Such declarations, however, must be in writing

and subscribed by the person making the declaration as true under penalty of perjury. Id.

§132.003; Draughon v. Cockrell, 112 S.W.3d 775, 776 n.2 (Tex. App.--Beaumont 2003,

no pet.). The “affidavit” tendered by the relator here contains no jurat; that is, it is not

signed by one authorized to give an oath (such as a notary public). And, to the extent the

document may constitute an unsworn declaration, relator failed to state in it that the factual

statements made are true and correct “under penalty of perjury.”

        Third, to the extent that the relator questions the reasonableness of his attorney’s

advice with regard to his execution of the plea documents and the waivers contained

therein, the complaint may be presented via a direct appeal. Alternatively, if relator waived

his right to appeal based upon supposedly unreasonable advice of counsel and attacks his

conviction on that ground, then it is possible that the complaint may be urged via a

statutory habeas corpus proceeding.1 See TEX . CODE CRIM . PROC . ANN . art. 11.07 (Vernon

2002) (discussing that remedy); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243

(Tex. Crim. App. 1991) (holding that since the applicant’s attempt to vacate his felony

conviction could be reviewed through a habeas proceeding initiated under art. 11.07 of the

Code of Criminal Procedure, mandamus could not issue). In either case, relator has not




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          Relator fails to inform this court of the specific rem edy he des ires and to which he believes him self
entitled due to the s upp ose dly unre aso nab le advice.

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shown that he lacks an adequate remedy at law, which is a prerequisite to obtaining a writ

of mandamus. In re Nolo Press/Folk Law Inc., 991 S.W.2d 768, 776 (Tex. 1999).

       Fourth, to the extent that relator seeks the appointment of counsel and the reporter’s

record to prosecute an appeal from his conviction, those matters can be addressed via

Texas Rules of Appellate Procedure 35.3(c) and 38.8. Each of those provisions grant the

appellate court substantial authority to assure the timely filing of the reporter’s record and

a brief addressing purported error committed by the trial court. In short, a legal remedy

may exist to obtain the relief sought at bar. At the very least, relator has not shown

otherwise, which is his burden to do. Thus, we cannot say that he is entitled to a writ of

mandamus regarding the appointment of counsel or the reporter’s record.

       Accordingly, the petition for writ of mandamus is denied.



                                                         Brian Quinn
                                                           Justice




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