J. B. Stell Gaines, Sr. v. TDCJ-ID

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00013-CV

______________________________

J. B. STELL GAINES, SR., Appellant

 

V.

 

TDCJ-ID, ET AL., Appellees

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On Appeal from the 12th Judicial District Court

Walker County, Texas

Trial Court No. 22760

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            In this appeal transferred from the Fourteenth District Court of Appeals, the clerk's record was due to be filed with this Court before January 18, 2005. J. B. Stell Gaines, Sr., is an inmate in the Texas Department of Criminal Justice—Institutional Division and has filed a pro se appeal from the dismissal of his lawsuit against the Texas Department of Criminal Justice. To date, no portion of the record has been filed.

            Gaines has not been declared indigent by the trial court and is thus responsible for paying or making adequate arrangements to pay the clerk's fees for preparing the record. See Tex. R. App. P. 37.3(b). On January 21, 2005, we sent Gaines a letter informing him the record was past due and the clerk's fees had not been paid. In that letter, we informed Gaines that he needed to make arrangements to have the record filed immediately. On February 17, 2005, we informed Gaines by letter that, if he did not make adequate arrangements to pay the clerk's fees, we would dismiss the appeal for want of prosecution. While Gaines did respond to both of our letters, he has not made arrangements for the payment of the clerk's fees. Gaines has alleged to this Court he has filed a request to proceed in forma pauperis, but the District Clerk of Walker County has informed this Court otherwise. The district clerk has informed us that no request for a finding of indigence has been filed and that Gaines has made no arrangements to secure payment of the clerk's fees. The district clerk has also informed us that the district clerk's office is not willing to prepare the clerk's record in the absence of any arrangements to pay the clerk's fees. Currently, no record has been filed with this Court.

            We dismiss the appeal for want of prosecution.

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          March 2, 2005

Date Decided:             March 3, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00006-CR

                                                ______________________________

 

 

 

                                      IN RE:  WILLIAM-GLENN BULINGTON, JR.

 

 

                                                                                                  

 

                                                                                                                            

                                                     Original Mandamus Proceeding

 

                                                                                                  

 

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                                             

                                                                             

                                                     MEMORANDUM  OPINION

 

            William-Glenn Bulington, Jr., has filed a petition for writ of mandamus with this Court.  Bulington claims that the indictment charging him with capital murder in June 2004 is void because it lists one of the complainants therein simply as “John Doe.”  Bulington alleges that the trial court lacked jurisdiction to hear his case, convict him of capital murder, and sentence him to life in prison.  Bulington asks this Court to dismiss the indictment and to enter a judgment of acquittal.

            We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion or failed to perform a mandatory act and the relator lacks an adequate appellate remedy.  In re Transcontinental Realty Investors, Inc., 271 S.W.3d 270, 271 (Tex. 2008) (orig. proceeding) (per curiam).  The Texas Court of Criminal Appeals and lower courts have recognized that “the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to Tex. Code Crim. Proc. art. 11.07.”  Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); accord In re Harrison, 187 S.W.3d 199, 200 (Tex. App.─Texarkana 2006, orig. proceeding). 

            Bulington appealed his capital murder conviction to this Court in cause number 06-04-00135-CR, and on November 1, 2005, this Court issued its opinion.  Bulington was afforded ample opportunity in his appeal to raise the issue of which he now complains, i.e., the alleged defective indictment.

            Here, Bulington further indicates that he filed a writ of habeas corpus in May 2007, which relief was denied.  Hence, Bulington has, heretofore, taken advantage of his exclusive post-conviction remedy.

            Further, Bulington asks this Court to directly dismiss his indictment and enter a judgment of acquittal.  This Court has jurisdiction to issue a writ of mandamus against a “judge of a district or county court in the court of appeals district.”  Tex. Gov’t Code Ann. § 22.221(b) (Vernon 2004). 

            The relief requested is beyond the scope of the mandamus authority of this Court. 

            We deny the petition for writ of mandamus. 

 

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          January 21, 2010

Date Decided:             January 22, 2010

 

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