### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 19 - 00825 - CR

Leroy Pickens, Jr., Appellant

v. The State of Texas, Appellee

FROM THE 35TH DISTRI CT COURT OF MILLS CO UNTY NO. 3274, THE HONORA BLE STEPHEN ELLIS, J UDGE PRESIDING

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

L eroy Pickens, J r., was convicted of possessing less than one gram of a control led substance in March 2019 , see Tex. Health & Safety Code §§ 481.102( 6), .115(a), (b), and this Court affirmed his convi ction in October 2019 , see Pick ens v. S tate , N o. 03

- 19

- 00194

- CR, 2019 WL 5199251, at * 7 (Tex. App.

— Au stin Oct. 16, 2019, pet. filed ) (mem. op., not designated for publ ication). A few weeks after his conviction was affirmed, Pickens filed with the district
court a “ M ot ion to C ompel Prod uction and Delivery of the Attorney

- Client File ” requesting that his former ly appointed trial counsel send him the attorney

- client f ile from the trial proceedings

. The district court denied the request. Following that ruling, Pickens fil ed a notice of a p p eal with this Court seeking to appeal the district court ’ s denial of his motion.

Both the motion and the notice of appeal assert that the relief requested pertains to the same cause numbe r in which he was found guilty and in which this Court affirmed hi s

c onviction, but the district court no longer has plenary power o ver th at ca use . S ee Ex parte2

Matthews , 452 S.W.3d 8, 13 (T ex. App.

— San Antonio 2014, no pe t.) ( setting out deadline by which tr i al court loses ple nary power over case and explaining that “ [ a ]f ter i ts p lenary power

over a c ause expires, the trial cou rt generally lacks the authority to take any action in the cause ” )

. We are aware of no constitutional provision, statute, or case law authorizing individuals to appeal in these circumstances the d eni a l of a post

- trial motion to compel a t ria l attorney to turn over the con tents of a n attorney

- cl ient file to a former client where the record demons trates that there is no current pending action before the district court and that the district court no l onge r ha s plenary jurisdiction over the orig inal criminal proceeding

. Cf. In re Rhodes , No. 14

- 15

- 0 01 95

- CR, 2015 WL 1247267, at * 1 (Tex. App.

— Houston [14th Dist.] Mar. 17, 2015, orig. proceeding) (mem. op., not designate d for publication) ( denying petitio n f or writ of mandamus , in part, where rela tor had “not identifie d a ny applicable statute that would give the trial court jurisdiction over a post

- trial dispute between [him] and h is former counsel ” ); In re Kennedy , No. 12

- 13

- 00195

- CR, 2013 WL 2456488 , at *1 (Tex. App.

— Tyler June 5, 20 13, orig. proceeding) (mem. op., not designated for publica tion) ( noting that trial courts do not have duty to rule on free

- floating motion s

“ unrelated to currently pending actions ” where relator ’ s conviction was final and that t rial court s ha ve no jurisdiction to rule on motion s i f they ha ve no plenary jurisdiction over associated case s )

. 1

1 We note that the Cou rt of Crimi nal Appeals has previ ously explained in In re McCann tha t a “ client ’ s file belongs to the clie nt ” and , accordingly, that attorneys should honor the wishes of t heir form er clie nts regarding w hether to release the conten t s of their attorney

- client file s . 422 S.W.3d 701, 704 , 70 9 (T ex. Crim. App. 2013). Alt hough those direct ives are unquestio nably true, see Tex. Disciplinary Rules P r of ’ l Conduct R. 1.15(d) (r e quir i ng attorney to surrender “ paper s and property to which the client is entitled ” ) , reprinted in Tex. Gov ’ t Code , tit. 2, subtit. G, app . A , McCann , unlike this case, involved a situation in which there was a pending dispute before a trial court. Speci fica l ly, a trial court appointed a n attorney to represent an in dividual, Turner , i n a habeas proceeding after Turner was convicted of capital murder , and the appointed habeas attorney successfully sought an order c ompel ling the former trial attorney to rel e ase the contents of Turner ’ s client file despite Turner ’ s spec ific instructions to his forme r trial atto rney not to discl ose the contents of the file to the habeas attorn ey . Id. at 702

- 03

. The trial attorney3 T o the extent that Pickens ’ s unambiguous notice of appeal could be construed as

a petition for writ of mandamus seeking th e release of the cli ent f ile , we note that this Court and other appellate courts have found in similar circumstances that mandamus relief was not authorized

. See In re Martinez , No. 04

- 18

- 0032 0

- CR, 20 18 WL 2323565, at * 1 (T ex. App.

— San Antonio M ay 23, 2018, orig. proceeding) (mem . op., not designated for publication) ( concluding that individual was not entitled to mandamus relief challenging district court ’s denial of his request to compel his trial at torney to release client file because relator failed to show that he was se eking purely ministerial act ) ; I n re Coleman , No. 03

- 14

- 00432

- CV, 2014 WL 4179431, at * 1 (Tex. App.

— Austin Aug. 19, 2014, orig. proceeding) (mem. op. ) ( deciding that r elat or , whose conviction had been affirmed on appeal , was not enti tled to mandamus relief comp elling trial court to order “trial attorneys to rel inquish his client files to him or to hold the attorneys in contempt , ” in part, because acts he sought “to c ompel are not min isterial acts ” ); see also In re Rhodes , 2015 WL 1247267, at * 1

- 2 ( denying p etiti on for writ of mandamus requesting that appellate cou rt order trial court to rule on his motion to compel his former attorney to release his

sought man damus review of the trial court ’ s o rd er , and t he Court of Crimi nal Appeals ultimately conclu ded th at the trial counsel was cor rect to follow the wishes of hi s former client and not relinquish the conten ts of the file and that the trial court di d not have the authority to compel the attorney to v iolate h is fid uciary duty to Turner

. Id. at 710, 71 1. Ac cordingly, giv en the different procedural p osture between this case and McCann as well as the ult imate resolution of McCann , we do not believe that McCann can be read as aut horizing Pickens ’ s a ppea l of the district court ’ s denial of his motion to hav e his former attorney release t he contents of the cl ie nt file from the tr ial where the record reveals that the re is no pending proceeding before the d istr ict court and that the district court no lon ger h as jurisdiction over the underlyi ng criminal proceedi ng. Cf. id. at 711 (noting that there was “ no constitutional provision, statute, or caselaw ” that authorized trial attorney “ to appeal the order of t he trial judge compelling him to turn over the t rial file ” ) ; see also I

n re Coleman , No. 03

- 14

- 00432

- CV, 2 014 W L 4179431, at * 1 & n.1 (Tex. App.

— Austin Aug. 19, 2014, orig. proceeding) (mem. op. ) ( agree ing that relator was “ entitled to his client file from his trial attor neys ” as stated in McCa n n but co nclu d ing that relator was not entitl ed to that relief thro ugh p etition for writ of ma ndamus asking that trial court be ordered to compel attorneys to comply with his request for his client file)

.4

client file and noting that “[t]he trial court ’s plenary power ha[d] exp ired, ” that trial co urt d id not have d uty t o rule on free

- floating motions unrelat ed to current pending actions , and that in absenc e of statute providing trial court with jurisdiction over his request, trial court had no duty to rule on motion ) . In light of this authority, we would similarly concl ude that Pickens is not entitled to mandamus reli e f under the circumstances pr esent here

.

For these reasons , we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).

__________________________________________ Thomas J. Baker , Justice Before Chi ef Justice Rose, Justices Bak er and Triana Dismissed for Want of Jurisdiction Filed: February 28, 2020 Do Not Publish