### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00106- CV

In re Jer ry Wayne Johnson

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N

J err y W ay n e J o hnson has filed a pro se petition for writ of mandamus asking this Court to vaca

te a trial court order issued in connec tion with a court of inquiry proce eding

. See Tex. Gov’t Code Ann. § 22.221 ( West 2004); Tex . R. App. P. 52.

Acc ording to his petition, J ohnson was a witness in a proce eding sty led “I n the Matter of a Court of I nquiry ,” cause number D-1-D C-08-100051, in the 299th J udicial District Court of Travis County

. That proce eding resulted in a trial court opinion and order concluding that Tim Cole

was innocent of the ag g rava ted sexual ass ault for which he was convicted in 1986 in L ubbock County

. The opinion and order states, among other things, th at J o h nson, who is serving life

1
sentenc es for other ag g rava ted sexual assault crimes, came forwa rd in 1995 and said that he committed the crime for which Cole was convicted. The opinion and order also ref lect that J ohnson,

I nitially , we observe that J ohnson has failed to provide a cer tified copy of the opinion and 1 order about which he complains. See Tex. R. App. P. 52.7(a) (re lator must file with petition “a cer tified or sworn copy of every document that is materia l to the re lator’s c laim for re lief and that was filed in any underly ing proce eding ”). Although he provides a copy of the opinion and order as an attac hment to his petiti on, it has no file-mar k showing it was filed with the district cler k.repr esente d by counse l at this proce eding , “fr eely confe ssed his g uilt” of that offe nse when he

testified. J ohnson now seeks to have that opinion and order vacated in this mandamus proce eding

. 2 We deny the petition.
T o b e entitled to mandamus relief in a criminal proce eding , a rela tor mus t s h o w: (1) that he has no adequa

te reme dy at law, and (2) that what he seeks to compel is a minist eria l act,

n o t i nvolving a discretionar y or judicial decision. In re State ex rel. W eek s , Nos. AP -7 6 , 9 5 3 & AP-76,954, 2013 WL 163460, at *3 (Tex. Crim. App. J an. 16, 2013) (orig

. proce eding ); State ex rel. Y oung v. Sixth Judicial Dis t. Court of Appeals , 236 S.W .3d 207, 210 (Tex. Crim. App. 2007) (orig . proce eding ). I f t he relator fails to satisfy either prong , relief should be denied. State ex re l.
Y oung , 236 S.W .3d at 210.

I n his petition, J ohnson indicates that he se eks re lief from “the trial court’s judicial finding that he is g uilty of committing a criminal offe nse of ag g rava ted sexual assault.” A revie w 3

o f t h e p et ition reve als that it is nothing more than another attempt by J ohnson to appea l th e complained- of order , this time in an orig inal proce eding

. Although he asks this Court to issue a writ of mandamus, J ohnson does not seek to compel a minist eria l act. I n fac t, he does not seek to compel

J ohnson was not a pa

rty to cause number D- 1-DC-08-100051. H e was merely a witness 2 in the proce eding

. Although the opinion and order sug g est that J ohnson is g uilty of the offe nse for which Cole was convicted, it does not constitute a judgme nt of conviction. Acc ording ly , this Court previously held that J ohnson had no rig ht of appea l f rom the opinion a

nd order resulting from that proce eding and dismiss ed his appea l. See Johnson v. State , No. 0 3-09-00229- CR, slip op. at 1-2 (Tex. App.—Austin J une 4, 2009, no pet.) (mem. op., not desig nated for publication), available at h t t p : / / ww w. s earch.txcourts.gov/Sea rchMe dia.aspx? MediaVe rsionI D=237a 8853-fd73- 4 c2 2 -b f6 a94a9e01b2c bc& coa= coa03& DT=O pinion&Media I D=a 5c5a01f -ac b4-4a68- b141-4a6a 29cedf 23. Ag ain, we note t hat J ohnson was not a pa rty to the underly

ing proce eding and thus he is 3 not a par ty to the opinion and order

. 2any act at all. Rather, J ohnson asks us to make a judicial deter mination that the underly

ing court of inquiry proce eding was illega l, to find that the trial court was without authority to issue the resulting opinion and order , and, ac cording ly , to vaca te the trial c ourt’s orde r. Mandamus relief is an extraordinary reme dy

. In r e S o u t h w estern Bell Tel. Co. , 235 S.W .3d 619, 623 (Tex. 2007) (orig

. proce eding ); In re Braswe l l , 3 1 0 S

. W

. 3 d 165, 166 (Tex. App.—Amar illo 2010, orig

. proce eding ). I t is the rela tor’s b u rd en t o p roperly reque st and show entitlement t o m an d am u s relief

. W alker v. Pack

er , 827 S.W .2d 833, 837 (Tex. 1992); In re Davidson , 153 S.W .3d 490, 491 (Tex. App.—Amar illo 2004, orig

. proce eding ); see Barnes v. State , 832 S

. W

. 2 d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig

. proce eding ) (“Eve n a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.” ).

We hold that J ohnson has not sa tisfied the ministerial-ac t require ment nece ssary to obtain mandamus relief beca use he does not seek to compel a minist eria l act. Acc ording ly , we deny 4
J ohnson’s petition for writ of ma ndamus.

__________________________________________

J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield Filed: Mar ch 13, 2013

Be cause the failure to establish this require ment is dispositi ve, we need not addre ss whether 4 the underly ing court of inquiry proce eding tha t Jo h n s o n c omplains of corr ectly followed the statutory proce dure set forth in chapte r 52 of the Texas Code of Criminal Procedur e, whether the proce eding the t rial court convene d was authorized, or whether the opinion and or der issued by the trial cour

t resulted f rom a va lid ex erc ise of the c ourt’s authority

. 3