## NO. 12

- 24

- 00207

- CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE:
JOE MARLIN GILMER , RELATOR § § § ORIGINAL PROCEEDING

MEMORANDUM OPINION PER CURIAM On June 21, 2024 , J oe Marlin Gilmer, acting pro se, filed this or iginal proceeding in which he complains of Resp ondent ’ s failure to conduct further proceeding s consisten t with this C ou rt ’ s opinion, in which we reversed the trial court ’ s order denying Gilmer ’ s motion to rescind as it pertains to court appointed attorney ’ s fees and restitution and remanded for furth er proceedings

. 1 See Gilmer v. State , No. 12

- 23

- 00054

- CV, 2023 WL 81039 57, at *4 (Tex. App.

— Tyler Nov. 21, 2023, no pet.) (mem. op.). 2 That same day , the Clerk of this Court inf ormed Relator t hat his petition fails to comp ly with appellate R ules 52.3 ( a )

- (c) , (e)

- (h) , (j) and (k) and 52.7. See T EX

. R. A PP

. P. 52.3 ( form and con te nts of petition ); T EX

. R. A PP

. P. 52.7 (record ). The notice warned that the petition wo uld be refer red to this Court for dismissal un less Relator provi ded a n amended petition and the record on or before July 5

. This deadline expired without
a respon se f rom R elator

.

1 Respondent is the Honorabl e Chris B. Martin , Judge of the 294 th D istrict Court in Van Zandt C o unty, Texas. The State of Texas is the R eal Part y in Interest.

2 When the trial court clerk receives the mandate, th e appellate court ’ s judgment must be enforced. T EX

. R. A PP

. P. 51.1(b). Upon receiving the appellate court ’ s mandat e, the lower court ha s a mandatory, ministerial duty to enforce the appellate court ’ s judgment. In re Ri chardson , 327 S.W.3d 848, 850 (Tex . App.

— F ort Wo rth 2010, orig. proceeding)

. The lower court has no discretion to review or interpret the mandate but, instead, must carry ou t the mandate. I d

. A court of appeals may issue a writ of mandamus to enforce its jurisdiction and to prevent the trial court from interfering with its judgments. Id . at 850

- 51.2 Generally, a party seeking mandamus relief must bring forward all that is necessary to establish his claim for mandamus re lief. See T EX

. R. A PP

. P. 52. The petition must contain certain items, including an appendix. See T EX

. R. A PP

. P. 52.3

. Texas Rule of Appellate Procedure 52

. 7 requires the relator to fil e a record as part of his petiti on in an original proceeding. T EX

. R. A PP

. P. 52

. 7

. Specifi ca lly, a relator must file (1) a certified or sworn copy of every document that is material to his claim for relief and that was f iled in any underlying proceeding; and (2) “a properly authenticated transcript of any relevant testimony from any

un derlying pr oceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.” T EX

. R. A PP

. P. 52

. 7 (a)

. It is a relator ’ s burden to provide this Cou rt with a re cord sufficient to establish the right
to mandamus relief. See In re Mack , No. 12

- 19

- 00238

- CV, 2019 WL 3024757, at *1 (Tex. App.

– Tyler July 10, 2019, orig. proceeding) (me m op.). In t hi s case, Relator did not provide a record in accordance with Rule 52

. 7

. Specifically, Relator has not shown that he presented his complaint to Re spondent and there is no record to demonstrate that Respondent fa iled to compl y with this Court ’ s mandate. S ee O ’ Connor v. First Court of Appeals , 83 7 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding) ( To est ablish an abuse of discretion by the trial court, the relator must establish that the trial court (1) had a legal dut y to perform a nondiscretionary act; (2) was asked to perform the act ; and (3) faile d or refused to do so within a reasonable time )

. Absen t a record, we cannot determine whet her Relator is entitled to mandamus relief. See Mack , 2019 WL 3024757, at *1

. Because Relator ’ s petition fails to comply with the appellat e rules, nothing is presented for this Court to review. Therefore, we deny the petition for writ of mandamus

.

Opinion delivered Ju ly 10, 2024. Panel consisted of Worthen, C.J., Hoyle, J., and Ne eley, J.

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

JU LY 10, 2024
NO. 12-24-00207- CV

J OE MARLIN GILMER , Relator V.
HON. JUDGE CHRIS B. MARTIN , Respondent

O RIGINAL P ROCEEDING ON T HIS DA Y came to be heard the petition for writ of mandamus filed by Joe Mar lin Gilmer; who is the relator in appellate cause number 12 -24-00207-CV, and the defendant in trial court cause number CR -15- 00226, for merly pending on the docket of the 294th District Co urt of Van Zandt Co unty , Texas. Said petition for writ of mandamus having been filed herein

on June 21, 2024 , and the same having been duly considered, because it is the opinion of this Court that th e 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

.
B y per curiam opinion. Panel consisted o f Worthen, C.J., Hoyle, J. and Neeley, J.