IN RE: DENNIS CHASTAIN

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Court of Appeals of Texas, Houston (14th Dist.).

IN RE: DENNIS CHASTAIN, Relator

NO. 14-17-00370-CR

Decided: May 25, 2017

Panel consists of Justices Christopher, Donovan, and Wise.

MEMORANDUM OPINION

On May 10, 2017, relator Dennis Chastain filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Susan Brown, presiding judge of the 185th District Court of Harris County, to (1) enter an order on relator's amended application for writ of habeas corpus, and (2) grant the application for writ of habeas corpus.

As the party seeking relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.7(a)(1) (relator must file with petition “a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding”). To be entitled to relief, the record must show both that the amended application for writ of habeas corpus was filed and brought to the attention of the trial court. See In re Foster, 503 S.W.3d 606 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (denying petition to compel trial court to rule on an application for writ of habeas corpus because relator did not provide this court with a certified or sworn copy of the habeas application or a record that shows the habeas application was filed and brought to the trial court's attention); In re Layton, 257 S.W.3d 794, 795 (Tex. App.— Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). “Filing something with the district clerk does not mean the trial court is aware of it.” In re Clewis, No. 14-10-00086-CV, 2010 WL 547087, at *1 n.3 (Tex. App.—Houston [14th Dist.] Feb. 18, 2010, orig. proceeding) (per curiam) (mem. op.). Relator must include in the record a file stamped copy of habeas application or proof that the habeas application was properly mailed to the court clerk. See In re Bishop, No. 14-06-00636-CV, 2006 WL 2434200, at *1 (Tex. App.—Houston [14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam) (mem. op.) (Denying petition because there is no file stamp or other indication the motions were in fact filed and are pending before the trial court).

The underlying case was transferred to the 185th Judicial District Court of Harris County, Texas, Judge Susan Brown presiding, on March 2, 2017. Relator alleges that he filed amended application for writ of habeas corpus on August 16, 2016, several months before the case transferred to Judge Brown. Relator has not provided our court with a record that shows that he both filed and brought the amended application for writ of habeas corpus to Judge Brown's attention.

Accordingly, we deny relator's request that we compel the trial court to enter an order or rule on relator's amended application for writ of habeas corpus.

Relator additionally asks our court to compel the trial court to grant relator's amended application for writ habeas corpus. We have no jurisdiction to grant such relief and therefore dismiss this part of the petition for want of jurisdiction.1

FOOTNOTES

1.   Because relator's petition involves a final post-conviction felony proceeding, it is governed by Article 11.07 of the Texas Code of Criminal Procedure. Only the Court of Criminal Appeals has jurisdiction in final post-conviction felony proceedings. Tex. Code Crim. Proc. Ann. art. 11.07; Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex .Crim. App. 1991) (orig. proceeding). “We have no authority to issue writs of mandamus in criminal law matters pertaining to proceedings under article 11.07.” In re Briscoe, 230 S.W.3d 196, 196–97 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding).

PER CURIAM