## In The Court of Appeals Seventh District of Texas at Amarillo

________________________ No. 07 - 19 - 00442 - CV

________________________ IN RE ANTHONY D. JAMES , RELATOR

O riginal Proceeding Arising From Proceedings Before the 13 7th District Court

Lubbock C ounty, Texas Trial Court No. 2006 - 411 , 486 ; Honorable John J. McClendon III , Presiding February 11 , 2020 

### MEMORANDUM OPINION Before PIRTLE, PARKER, and DOSS, J.J. Proceeding pro se , Relator, Anthony D. James, an inmate in the Texas Department of Criminal Justice, Institutional Division, seeks a writ of mandamus to compel the Honorable John J. McClendon III to vacate his order of December 3, 2019 , denying Relator’s Motion for Nunc Pro Tunc Ord er to Recall A Void Sentence and Judgment, to hold a hearing on Relator’s motion, and to reach the merits of the court’s jurisdiction in the underlying matter. Relator also seeks mandamus relief against District Clerk Barb a ra2

Su c s y. For the reasons expres sed herein, we dismiss Relator’s petition for writ of mandamus as it pertains to District Clerk Barbara Su c s y and deny Relator’s petition for writ of mandamus as it pertains to the Honorable John J. McClendon III. M ANDAMUS S TANDARD OF R EVIEW Mandamus is a n extraordinary remedy granted only when a relator can show that (1) the trial court abused its discretion and (2) that no adequate appellate remedy exists. In re H.E.B. Grocery Co., L.P. , 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam)
. When seeking mandamus relief, a relator bears the burden of proving these two requirements. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)
. To establish an abuse of discretion, the relator must demonstrate the trial court acted unr easonably, arbitrarily, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241 - 42 (Tex. 1985) . To establish no adequate remedy by appeal, the relator must show there is no adequate remedy at law to address the alleged harm and that the act requested is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. S ixth Judicial Dist. Court of Appeals , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding)
. A NALYSIS In 2006, Relator was convicted of four counts of aggravated sexual assault of a child and one count of indecency with a child. He was senten ced to imprisonment for life for each of the aggravated sexual assault of a child convictions, to be served concurrently, and to a fifth concurrent sentence of imprisonment for a term of forty years for the indecency with a child count. Relator appealed his convictions and this court affirmed3

those convictions in June 2007. See James v. State, No. 07 - 06 - 0429 - CR, 2007 Tex. App. LEXIS 4531, at *1 (Tex. App.
— Amarillo June 6, 2007, no pet.) (mem. op., not designated for publication)
. 1 In the petition for w rit of mandamus now before us , Relator contends the trial court’s December 3, 2019 denial of his Motion for Nunc Pro Tunc Order was an abuse of its discretion because the court did not hold a hearing on his motion and reach the merits concerning the issue of the trial court’s original jurisdiction over his case. Secondly, Relator argues the District Clerk breached her ministerial duties by neglecting and/or failing to docket th e motion properly before the trial court for the submission hearing scheduled on December 6, 2019. Relator’s Motion for Nunc Pro Tunc Order requested the “immediate filing and consideration for a dismissal of a void judgment with a [sic] illegal sentence due to the grand jury’s hearing without proper investigation of the State’s fraudulent indictment.” Relator argues that “vital pre - trial issues concerning the State’s representation” of the indictment were not addressed, rendering the indictment setting f orth the charges against him fraudulent. He contends the indictment was fraudulent because the grand jury that returned a “true bill” against him did so without all of the facts of his case before it. It is Relator’s burden to show entitlement to mandam us relief. In re Davidson , 153 S.W.3d 490, 491 (Tex. App.
— Amarillo 2001, orig. proceeding) . In his Motion for Nunc

1 Relator did not file a petition for discretionary review in the Texas Court of Criminal Appeals but did subsequently file three petitions for writs of mandamus. See In re James, No. 07 - 17 - 00085 - CV, 2017 Tex. App. LEXIS 3229 (Tex. App.
— Amarillo Apr. 12, 2017, orig. proceeding); In re James, No. 07 - 16 - 00113 - CR, 2016 Tex. App. LEXIS 9560 (Tex. App.
— Amarillo Aug. 29, 2016, orig. proceeding); In re James, No. 07 - 16 - 00302 - CR, 2016 Tex. App. LEXIS 3026 (Tex. App.
— Amarillo Marc h 23, 2016, orig. proceeding).4

Pro Tunc Order, Relator is not seeking to correct a clerical error in the judgment. Instead, based on the assertions in his petition, he is attacking the validity of his convictions and sentences based on an indictment he contends was fraudulent. This requires a discretionary or judicial decision. Such a complaint is not properly raised in a motion for nunc pro tunc judgment or a petitio n for writ of mandamus. Relator’s request for dismissal of an allegedly void sentence is properly raised in an article 11.07 application for writ of habeas corpus. T EX . C ODE C RIM . P ROC . A NN . art. 11.07 (West 2015 ) . Under article 11.07 of the Texas Cod e of Criminal Procedure, the Texas Court of Criminal Appeals has exclusive jurisdiction over post - conviction relief from final felony convictions. In re Watson , 203 S.W.3d 319, 320 (Tex. App.
— Amarillo 2008, orig. proceeding) . Thus, the courts of appeals do not have jurisdiction in such matters. In re Briscoe , 230 S.W.3d 196 (Tex. App.
— Houston [1 4th Dist.] 2006, orig. proceeding) . Consequently, Relator must challenge the validity of his sentence in a habeas corpus proceed ing in the Texas Court of Criminal Appeals. We must , therefore , deny Relator’s request for mandamus relief against the Honorable John J. McClendon III. While not mentioned in the body of Relator’s argument or in his prayer, we do note that Relator’s seco nd issue stated in his petition for writ of mandamus alleges that the District Clerk breached her ministerial duties by neglecting and/or failing to docket the motion properly before the trial court for the submission hearing scheduled on December 6, 2019. We do not have jurisdiction to compel the D istrict C lerk to file or schedule R elator’s motions . See T EX . G OV ’ T C ODE A NN . § 22.221 (West Supp. 2019) (limiting the court of appeals’ mandamus jurisdiction to (1) a judge of a district, statutory county, sta tutory probate county, or county court in the court of appeals district; (2) a judge of a5

district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district; or (3) an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code, in the court of appeals district for the judge who appointed the associate judge) . Further, Relator has not shown that the issuance of a writ compelling the reques ted relief is necessary to enforce this court’s appellate jurisdiction. Therefore, we dismiss the petition for writ of mandamus to the extent Relator seeks mandamus relief against District Clerk Barbara Su c s y. See In re Potts , 357 S.W.3d 766, 767 - 68 (Tex. App. — Houston [14th Dist.] Nov. 29, 2011, orig. proceeding)
. See also In re O’Hara , No. 14 - 15 - 00379 - CR, 2015 Tex. App. LEXIS 4626, at *2 (Tex. App.
— Houston [14th Dist.] May 7, 2015, orig. proceeding) ; In re Brown , No. 07 - 11 - 00397 - CV, 2011 Tex. App. LEXIS 8581, at *4 (Tex. App.
— Amarillo Oct. 27, 2011, orig. proceeding)
. C ONCLUSION To the extent Relator seeks mandamus relief against District Clerk Barbara Su c s y, we dismiss the petition for writ of mand amus for lack of jurisdiction. Furthermore, w e deny Relator’s petition for writ of mandamus as it pertains to mandamus relief requested against the Honorable John J. McClendon III.

Patrick A. Pirtle Justice