IN RE: Manuel PENA (2021)

OPINION

On October 30, 2020, relator Manuel Pena filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Abigail Anastasio, presiding judge of the 184th District Court of Harris County, to forward all records in relator's jury trial to relator for the purpose of preparing an application for writ of habeas corpus.

To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). Indigent defendants do not have the right to a free record for collateral attacks on their convictions. In re Bonilla, 424 S.W.3d 528, 532 (Tex. Crim. App. 2014) (orig. proceeding). A trial court has the discretion to deny a request for a free record for use in preparing a post-conviction writ application. In re Alvarez, 582 S.W.3d 553, 555 (Tex. App.—Waco 2019, orig. proceeding).

Because the trial court has the discretion to deny relator's request for a free record for use in a potential post-conviction application for writ of habeas corpus, relator has failed to show that his request for relief involves a ministerial act rather than a discretionary action.

Moreover, as the party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding); In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). Relator has not met his burden. Relator has not included a sworn or certified copy of the subject order or a sworn or certified copy of every document that is material to relator's claim for relief and was filed in the proceeding in the trial court. See Tex. R. App. P. 52.3(k)(1)(a); 52.7(1).

Relator has not established that he entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.

DISSENTING OPINION

This court has no proper record on which to reach a decision on the merits. Rather than give relator notice of the problem and an opportunity to cure the mandamus record and be heard on the merits, the court denies the petition. This court should treat similarly situated parties the same way. In other cases, this court has notified the relator of the error and allowed time for the deficiency to be cured. If the deficiency was not corrected, the petition was dismissed, rather than denied, because the merits of the petition were never considered. Accordingly, the court should give relator notice that this original proceeding will be dismissed unless the procedural deficiencies are remedied. See In re Kholaif, No. 14-20-00731-CV, ––– S.W.3d ––––, 2020 WL 7013339 (Nov. 25, 2020, order), dism'd, 615 S.W.3d 369 (Tex. App.—Houston [14th Dist.] Dec. 22, 2020, no pet. h.). The court should not determine whether relator will be able to file a confirming petition and mandamus record without giving relator the benefit of due process and due course of law.

Because I would not deny a petition for a procedural defect, I respectfully dissent.

Kevin Jewell, Justice

(Bourliot, J., dissenting).