### 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. 03-12-00823- CV

In re Jesus G arcia, Jr .

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 esus Gar cia, J r., an inmate in the Texas D epar tment of Criminal J ustice, has filed 1 a docume nt entitled Motion for Leave to File t he Origi nal Application for W rit of Mandamus and Prohibition

. A m otion for leave to file a petition for wr i t o f m an d am u s i s require d when relief is soug ht from the court of cri m i n al appea ls. See Tex. R. App. P. 72.1. A motion for leave is not require d for such a petition f iled in a n intermediate appellate court. See Tex. R. App. P . 52.1. An orig inal proce eding seeking extraordinary relief in a court of appea ls is commence d by the filing of

a petition. See id. Thus, under the applicable rules, if mandamus relief is s o u gh t from an intermediate court, such as the Third Court of Appea ls, a motion fo r l ea v e t o file the petition is unnece ssary . To the extent that Gar cia’ s document could be rea d as a petition initiating an orig inal appellate proce eding seeki n g ex t ra ordinary relief , see id. , there is simply inadequa te information supplied to even beg in to addre ss the leg al merits. First, while Gar cia names the “B oard of Pardons

I t ap pear s that Gar cia was convicted in 2007 in Tay lor County of the felony offe nse o f 1 indece ncy with a child by

sexual contact for

which he r ece ived a life sentenc e.and Paroles et. al” as the Respondent in the sty le of the case , it is uncl ea r fr o m the body of the

document ag ainst whom he seeks mandamus relief

. Second, it is dif

fi cu l t t o d iscern the prec ise
nature of Ga

rcia ’s complaint. Consequently , it is unclear what remedy or re lief he se eks. At the beg inning of t h e d o cu m ent, Gar cia appea rs to be reque sting permission to appea l to thi s C o u rt an Original Application for W rit of Mandamus and Prohibition for “a decla ratory judgme nt and a injunction relief for disposi tion rela ted to merits on all other c laims.” Wit hin the document, Gar cia ref ere nces a motion to file a stay , a motion to extend time for

re co n s i dera tion, and a motion for rehea ring “ag ainst the C ourt of C riminal Appea ls,” as we l l as a motion to file nunc pro tunc, a motion to expunge rec ords, and a motion to set aside and quash the indictment. He complains about his “i l l egal and void life sentenc e” and “hea rsay evidenc e in viola t i on of double jeopar dy ,” and mentions “new ly discovere d evidenc e” and his “ac tually [si c] innocenc e.” He also appea rs to complain about a clemenc y application submitt ed to the Texas Boa rd of Pardons and Paroles. He further asser ts that he filed a civil suit in Travis County seeking a h ea ri n g o n h is reque st for clemenc y and an order and a temporar y injunction requiring the parole board to hold such a hear ing. Gar cia does no t , h oweve r, supply any nece ssary information in the Motion for Leave to File the Original Application for W rit of Mandamus and Prohibition that would help us deter

mine whether he is entitled to any mandamus relief

. Nor does he attach or furnish any documents or r ecor ds of proc eeding s.

M an d am u s relief is an extraordinary reme dy

. In re Southwestern Bell Tel. Co. , 235 S.W .3d 619, 623 (Tex. 2007) (orig

. proce eding ); In re Braswell , 31 0 S

. W

. 3 d 1 6 5 , 166 (Tex. App.—Amar illo 2010, orig

. proce eding ). I t is rela tor’s burden to pro p er l y reque st and show

2entitlement to mandamu s re l i ef

. 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 .2d 424, 426 (Tex. Ap p . — Ho u ston [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.” ). I n this reg ard, the rela tor must provide the revie wing court with a rec ord sufficie nt to establish his rig ht to mandamus reli ef

. S ee W alker , 827 S.W .2d at 837; In re Blakene y , 254 S.W .3d 659, 661 (Tex. App.—Texarkana 2008, orig

. proce eding ); see also Tex. R. App. P. 52.7(a) (re lator must file with petition “a cer

tified or sworn copy of ever y document that is materia l to the rela tor’s claim for relief and that was filed in any underlying proce eding ”), 52.3(k) (s p ec i fy i n g require d contents for appendix), 52.7(a) (spec ify ing r equire d contents for rec ord). Gar cia has failed to satisfy his b u rden and has not established entitlement to the extraordinary relief of a writ of mandamus. Acc ording ly , trea ting the document Gar cia has filed as a petition for wr it of mandamus, it is denied. 2

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Filed: January

18, 2013

I n the title of his document, Gar cia ref ers to a “wr it of man d am u s and prohibition.” A 2 writ of prohibition issues to preve nt the commission of a fu ture act. See In re Dacus , 337 S.W .3d 501, 504 (Tex. Ap p .—For t Worth 2011, orig

. proce eding ) (citing State ex rel. W ade v. Mays , 689 S.W .2d 893, 897 (Tex. Crim. App. 1985)). Nowher e in his motion does Gar cia ref er to, disc uss, c omplain a

bout, or seek the preve ntion of any future act. Thus, we do not c onstrue his document as a

petition for writ of pr ohibition. 3