                      COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG


                    NUMBER 13-10-00090-CR

SEBASTIAN WILLIE MEJIA,                                 Appellant,

                                v.

THE STATE OF TEXAS,                                      Appellee.


              On appeal from the 377th District Court
                    of Victoria County, Texas.


                    NUMBER 13-11-00587-CR

                 IN RE SEBASTIAN WILLIE MEJIA


                On Petition for Writ of Mandamus.


   Before Chief Justice Valdez and Justices Garza and Benavides
                 Memorandum Opinion Per Curiam
       Sebastian Willie Mejia (“relator”) is currently before this Court as a pro se

appellant in cause number 13-10-00090-CR, in which he is appealing his conviction for

engaging in organized criminal activity.     See TEX. PENAL CODE ANN. § 71.02 (West

Supp. 2010). This original proceeding was commenced by the filing of relator’s petition

for writ of mandamus, requesting that this Court direct Yvett Shugart (“respondent”), the

official court reporter for the 377th District Court of Victoria County, to prepare, certify,

and file with this Court a supplemental reporter’s record containing what relator alleges

to be relevant items omitted from the original reporter’s record. See TEX. R. APP. P.

34.6(d). For the reasons set forth below, we deny the petition for writ of mandamus;

however, based on the authority of rule 34.6(d), we direct respondent to file with this

Court within 45 days a supplemental reporter’s record containing: (1) the items relator

complains were omitted from the original reporter’s record (as set forth below); or (2)

respondent’s certification that it is not possible to supplement the reporter’s record with

the complained-of item(s). See id.

                                     I. BACKGROUND

       On February 22, 2010, after relator was convicted for engaging in organized

criminal activity and sentenced to life in prison, relator’s court-appointed attorney filed a

notice of appeal in cause number 13-10-00090-CR. Relator’s attorney obtained from

this Court two extensions of time to file relator’s appellate brief. On April 28, 2011,

when relator’s brief had still not been filed, we abated the appeal and remanded the

case to the trial court for determination of whether relator’s court-appointed attorney

should remain as relator’s counsel and, if not, whether relator is entitled to a new

appointed counsel or waives his right to counsel and elects to proceed pro se. On May



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23, 2011, the trial court entered an order in which it found that relator had waived his

right to counsel and discharged relator’s court-appointed counsel with instructions for

counsel to forward a copy of the reporter’s record to relator.

       Relator’s appeal was subsequently re-instated, and relator (now pro se) obtained

a third extension of time to file his appellate brief, which as a result, became due on

September 25, 2011. On August 25, 2011, relator filed his fourth motion for extension

of time to file his appellate brief. The motion remained pending and had not been ruled

upon when the deadline expired for relator to file his appellate brief, which this Court

had not received to date.

       On September 19, 2011, relator commenced this original proceeding by filing his

petition for writ of mandamus, requesting that this Court direct respondent to prepare,

certify, and file with this Court a supplemental reporter’s record containing relevant

items allegedly omitted from the original, 29 volume, 2,533 page-long, reporter’s record.

See TEX. R. APP. P. 34.6(d). Relator complains that the following items were omitted

from the reporter’s record: (1) the transcript of a pre-trial hearing held on an unknown

date sometime between July and November 2009, during which the trial court made a

ruling to set aside funds for relator’s court-appointed attorney to hire a private

investigator; (2) the transcript of a pre-trial hearing held on an unknown date sometime

between July and November 2009, during which relator attempted to object to (a) his

court-appointed attorney’s failure to investigate the case, (b) his inability to participate in

his own defense, and (c) the breakdown in communications with his court-appointed

attorney; and (3) pages 9, 10, 16, 21, 25, 34, 36, 42, 46, and 47 in volume 15 of the

reporter’s record. After reviewing the reporter’s record filed with this Court, we have



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confirmed that respondent did not omit the pages in volume 15 that relator alleges were

omitted.

                                 II. LEGAL STANDARD

       To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet these requirements, then the petition for writ of

mandamus should be denied. See id. It is relator’s burden to properly request and

show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of

mandamus must show himself entitled to the extraordinary relief he seeks.”).

                                 III. APPLICABLE LAW


       The reporter’s record is part of the appellate record. See TEX. R. APP. P. 34.1

(appellate record consists of clerk’s record and, if necessary to appeal, the reporter’s

record). In criminal cases, the appellate record must be filed in the appellate court

within sixty days after the date sentence is imposed or suspended in open court or

within one hundred twenty days of such date if a timely motion for new trial is filed. TEX.

R. APP. P. 35.2(a), (b). The reporter’s record may be supplemented after it is filed if

anything relevant is omitted from it, and may be corrected either before or after it is filed

in the appellate court. TEX. R. APP. P. 34.6(d), (e). Moreover, the appellate court must

allow the record to be filed late when the delay is not the appellant’s fault, and may do

so when the delay is the appellant’s fault. TEX. R. APP. P. 35.3(c).


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                                     IV. ANALYSIS

       Because a reporter’s record is often necessary to the exercise of appellate

jurisdiction, a court of appeals may issue a writ of mandamus to compel the completion

of the reporter’s record. See Wolters v. Wright, 623 S.W.2d 301, 305 (Tex. 1981). In

this case, however, we conclude that it is unnecessary to issue the writ to enforce our

jurisdiction. If anything relevant is omitted from the reporter’s record, we may direct the

court reporter to file in this Court a supplemental reporter’s record to cure the omission.

See TEX. R. APP. P. 34.6(d).        Accordingly, we will deny the petition for writ of

mandamus, but we will exercise our authority under rule 34.6(d) to direct respondent to

file with this Court within 45 days a supplemental reporter’s record containing the

following:

       (1) the items relator complains were omitted from the original reporter’s
           record:

             a. a transcript of the hearing identified by relator as a pre-
                trial hearing held between July and November 2009,
                during which the trial court made a ruling to set aside
                funds for relator’s court-appointed attorney to hire a
                private investigator; and

             b. a transcript of the hearing identified by appellant as a
                pre-trial hearing held between July and November 2009
                during which relator attempted to object to his court-
                appointed attorney’s failure to investigate the case, his
                inability to participate in his own defense, and the
                breakdown in communications with his court-appointed
                attorney;

       (2) respondent’s certification that it is not possible to supplement the
           reporter’s record with the complained-of item(s).

                            V. CONCLUSION AND ORDER




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       The Court, having examined and fully considered the petition for writ of

mandamus is of the opinion that the petition should be denied. Accordingly, because

relator has failed to demonstrate that he is entitled to extraordinary relief, the petition for

writ of mandamus is denied. Based on the authority of rule 34.6(d), we direct

respondent, Yvett Shugart, the official court reporter for the 377th District Court of

Victoria County to file with this Court within 45 days a supplemental reporter’s record in

cause number 13-10-00090-CR containing either: (1) the items relator complains were

omitted from the original reporter’s record (as set forth above); or (2) respondent’s

certification that it is not possible to supplement the record with the complained-of items.

Relator’s fourth motion for extension of time to file his appellate brief will be held in

abeyance until respondent has filed the supplemental reporter’s record.               It is so

ORDERED.

                                                   PER CURIAM



Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of December, 2011.




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