In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00289-CR
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IN RE THOMAS DARRELL CROSS JR.
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Original Proceeding
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MEMORANDUM OPINION
Thomas Darrell Cross Jr. seeks mandamus relief against the district clerk of
Liberty County, the official court reporter for the 75th District Court of Liberty
County, and the judge of the 75th District Court of Liberty County, in connection
with his effort to obtain copies of a jury charge, a verdict form, and the reporter’s
record of a trial that ended in a mistrial.
After the jury in Cross’s first trial failed to reach a verdict on guilt or
innocence, the State tried the case to a new jury, Cross was convicted, and his
conviction was affirmed on appeal. See Cross v. State, No. 09-11-00406-CR, 2012
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WL 6643832, at *5 (Tex. App.—Beaumont Dec. 19, 2012, pet. ref’d) (mem. op.,
not designated for publication). Neither of the issues Cross raised in that appeal
concerned the first trial. Id. at *1. After our mandate issued, Cross asked the
district clerk and the court reporter for records from the first trial. In his mandamus
petition, Cross argues that the requested records are relevant to double jeopardy
issues, presumably for use in preparing an application for a post-conviction writ of
habeas corpus.
In an estimate dated October 7, 2013, the court reporter informed Cross that
the requested record would cost $1,459.50 to prepare. Cross contends that on June
2, 2014, he submitted his objections to the fee and asked the trial court to resolve
the dispute, but the trial court has not responded to his request. See Tex. Gov’t
Code Ann. § 52.047(b) (West 2013) (“If an objection is made to the amount of the
transcript fee, the judge shall determine a reasonable fee, taking into consideration
the difficulty and technicality of the material to be transcribed and any time
constraints imposed by the person requesting the transcript.”). Cross proposed
paying ten cents per page or for the court reporter to loan the record to him for
ninety days.
A trial court’s duty to resolve a transcript fee dispute under section
52.047(b) of the Texas Government Code may be compelled. See In re Slaughter,
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No. 02-13-00122-CV, 2013 WL 1960624, at *3 (Tex. App.—Fort Worth May 14,
2013, orig. proceeding) (mem. op.). In this case, however, Cross is asking this
Court to require the trial court to either set the transcript fee at ten cents per page or
make a copy of the record available for his use. The trial court has discretion to
deny a request for a free record for use in preparing a post-conviction writ
application. See In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio
1998, orig. proceeding). The mandamus record contains no evidence that ten cents
per page would be a reasonable fee for the record, considering the difficulty and
technicality of the material. See Tex. Gov’t Code Ann. § 52.047(b). Cross has not
shown that he is entitled to the relief he requested in his mandamus petition. See
Tex. R. App. P. 52.8(a).
Cross also seeks mandamus relief from the court reporter and the district
clerk, but neither individual falls within the identified officials within our general
mandamus jurisdiction. See Tex. Gov’t Code Ann. § 22.221(b) (West 2004). Our
mandate issued in Cross’s appeal and the requested relief does not concern the
enforcement of our appellate jurisdiction. Id. § 22.221(a). We lack jurisdiction to
issue a writ of mandamus to the district clerk or the court reporter in this
proceeding. The petition for writ of mandamus is denied.
PETITION DENIED.
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PER CURIAM
Submitted on August 4, 2014
Opinion Delivered August 20, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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