Court of Appeals of Texas, 2021

in Re: Samuel Rios

Court of Appeals of Texas · Decided November 17, 2021

Opinion

NO. 12-21-00190-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: §

SAMUEL RIOS, § ORIGINAL PROCEEDING RELATOR §

MEMORANDUM OPINION

PER CURIAM

Samuel Rios, acting pro se, filed this original proceeding, in which he seeks a writ instructing Respondent to prepare copies of the trial records, the Anderson County District Attorney’s work product file, evidence that was intended to be use at trial and not intended to be used at trial, and contact information for the court reporter on his case. 1 On October 20, 2021, the Clerk of this Court informed Relator that his petition fails to comply with appellate Rules 52.3(a)-(h) and (k) and 52.7. See TEX. R. APP. P. 52.3 (form and contents of petition); see also TEX. R. APP. P. 52.7 (record). The notice warned that the petition would be referred to this Court for dismissal unless Relator provided the appendix and record on or before November 1. This deadline expired without a response from Relator.

Generally, a party seeking mandamus relief must bring forward all that is necessary to establish his claim for mandamus relief. See TEX. R. APP. P. 52. The petition must contain certain items, including the identity of parties and counsel, a table of contents, an index of authorities, a statement of the case, a statement of jurisdiction, issues presented, a statement of facts, argument, and an appendix. See TEX. R. APP. P. 52.3(a)-(h), (k). Texas Rule of Appellate Procedure 52.7 requires the relator to file a record as part of his petition in an original proceeding. TEX. R. APP. P. 52.7. Specifically, a relator must file (1) a certified or sworn copy of every document that is material to his claim for relief and that was filed in any underlying proceeding; and (2) “a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.” TEX. R. APP. P. 52.7(a). It is a relator’s burden to provide this court with a record sufficient to establish the right to extraordinary relief. See In re Daisy, No. 12-13-00266-CR, 2014 WL 5577068, at *2 (Tex. App.–Tyler Aug. 29, 2014, orig. proceeding) (mem. op., not designated for publication). In this case, Relator did not provide a record in accordance with Rule 52.7. Absent a record, we cannot determine whether Relator is entitled to relief. See In re McCreary, No. 12-15-00067-CR, 2015 WL 1395783 (Tex. App.–Tyler Mar. 25, 2015, orig. proceeding) (per curiam) (mem. op., not designated for publication). Because Relator’s petition fails to comply with the appellate rules, he presents nothing for this Court to review. 2 Therefore, we deny his petition for writ of mandamus. All pending motions are overruled as moot.

Opinion delivered November 17, 2021.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 17, 2021

NO. 12-21-00190-CR

SAMUEL RIOS,

Relator

HON. MARK A. CALHOON,

Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by Samuel Rios; who is the relator in appellate cause number 12-21-00190-CR and the defendant in trial court cause number 24895, formerly pending on the docket of the 3rd Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus having been filed herein on October 18, 2021, and the same having been duly considered, because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied.

By per curiam opinion.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

1 It is unclear from Relator’s petition whether he seeks a writ of mandamus against the Honorable Mark A. Calhoon, Judge of the 3rd District Court in Anderson County, Texas, or Teresia Coker, the Anderson County District Clerk. The State of Texas is the Real Party in Interest. To the extent Relator complains of the District Clerk, a district clerk is not a judge over which this Court has mandamus jurisdiction. See TEX. GOV’T CODE ANN. art. 22.221(a), (b) (West Supp. 2020) (writ power); see also In re Mack, No. 10-17-00186-CR, 2017 WL 2819091, at *1 (Tex. App.—Waco June 28, 2017, orig. proceeding) (mem. op., not designated for publication); In re Eaton, No. 12–15–00118–CR, 2016 WL 6876502, at *1 (Tex. App.–Tyler, Nov. 22, 2016, orig. proceeding) (mem. op., not designated for publication); In re Vargas, No. 01-12-00351-CV, 2012 WL 1454550, at *1 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, orig. proceeding) (mem. op) (per curiam). Nor is there any indication that issuance of a writ of mandamus against the District Clerk is necessary to protect this Court’s jurisdiction. See In re Talkington, No. 12-07-00272-CR, 2007 WL 2178551, at *1 (Tex. App.—Tyler July 31, 2007, orig. proceeding) (mem. op., not designated for publication); see also Ex parte Sanders, No. WR-80,356-01, 2013 WL 5872901, at *1 (Tex. Crim. App. Oct. 30, 2013) (order, not designated for publication) (per curiam); In re Foster, No. 14-16-00698-CR, 2016 WL 5853282, at *1 (Tex. App.—Houston [14th Dist.] Oct. 6, 2016, orig. proceeding) (mem. op., not designated for publication) (per curiam); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Thus, we construe this proceeding as one against Judge Calhoon. 2 Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by counsel. In re Guerrero, No. 12-21-00100-CR, 2021 WL 3412558, at *1 n.3 (Tex. App.—Tyler Aug. 4, 2021, no pet.) (mem. op., not designated for publication) (per curiam).

Case-law data current through September 30, 2026. Source: CourtListener bulk data.