In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00111-CV ______________________________
IN RE:
BILLY JOE PATTON
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Billy Joe Patton, acting pro se, seeks mandamus relief (1) from this Court to direct the trial court, the Honorable Robert Newsom of the Eighth Judicial District Court, to do six different things: (1) respond to Patton's discovery request, (2) hold an evidentiary hearing on Patton's previous claims of ineffective assistance of counsel, (3) hold evidence suppression hearings, (4) withdraw Patton's conviction, (5) appoint defense counsel for Patton's motion for new trial, (6) provide an evidentiary hearing on Patton's trial counsel's allegedly substandard behavior at trial, and (7) comply with "Texas' full faith and credit laws."
In numerous ways, Patton's petition violates Rule 52.3 and Rule 52.7 of the Texas Rules of Appellate Procedure. Among those violations, the petition is not supported by affidavit, as required by Rule 52.3; contains no listing of parties or counsel, no table of contents, no index of authorities, no comprehensible statement of the case, and no appendix containing any order complained of, all as required by Rule 52.3; and is accompanied by no record, as required by Rule 52.7. See Tex. R. App. P. 52.3, 52.7. As a result, none of Patton's requests are properly supported by essential documentation. See In re Pappy's Sand & Gravel, Inc., No. 05-06-01427-CV, 2006 Tex. App. LEXIS 9359 (Tex. App.--Dallas Oct. 30, 2006, orig. proceeding) (without record, mandamus denied); In re Wickware, No. 12-06-00300-CV, 2006 Tex. App. LEXIS 7966 (Tex. App.--Tyler Sept.6, 2006, orig. proceeding) (without record or appendix, mandamus denied). The relator must provide, with his or her petition for writ of mandamus, a sufficient record to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Risley, No. 14-06-01005-CV, 2006 WL 3486823 (Tex.App.--Houston [14th Dist.] Dec. 5, 2006, orig. proceeding). Patton has failed to carry that burden, and that is fatal to his petition. (2)
For the above reasons, we deny Patton's petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: December 7, 2006
Date Decided: December 8, 2006
1. On November 27, 2006, Patton filed with this Court a document styled "Notice for Mandamus Petition." We treat that filing as a petition for writ of mandamus in this case number and dispose of it herewith. Subsequently, Patton has filed another document seeking mandamus relief on various alleged grounds, at least some of which are different than those set out herein. That subsequent mandamus petition is filed, and will be disposed, under our cause number 06-06-00116-CV.
2. We note also that Patton's requests one and seven are fatally indefinite; his request four appears to be an improper effort to appeal an underlying conviction under the guise of a mandamus proceeding; and his requests two, three, five, and six appear to be untimely. To understand the lack of timeliness, note that Patton's petition for writ of mandamus, filed November 27, 2006, refers to his January 17, 2006, motion for new trial. Apparently, the judgment was signed on or before January 17, 2006. Compare those dates with Tex. R. Civ. P. 329b(c), which provides that a motion for new trial is overruled by operation of law if not determined within seventy-five days after the judgment is signed.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00111-CR
______________________________
DAVID HEATH FOUSE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 0820359
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
David Heath Fouse has filed an appeal from six convictions. Three are for the first- degree felony of aggravated sexual assault on a child (under fourteenB.P.), and three are for the second-degree felony of sexual assault on a child (under seventeenR.R. and C.J.). A single brief has been filed to address all six appeals. Fouse testified at trial. He admitted that he was convicted in 1999 of the felony offense of assault on a peace officer and the state-jail felony offense of burglary of a building, and admitted having sexual intercourse with B.P. and C.J.
This appeal is from his conviction for sexual assault on a child, on C.J. Fouses appellate brief raises no issue, and makes no argument, concerning this conviction. When a point of error is inadequately briefed, we will not address it. Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992). This situation goes one step beyond simple inadequate briefing. Points are not merely inadequately briefed, they are not raised at all. This Court is not the appellants advocate. Although we have an interest in a just adjudication, we also have an interest in remaining impartial. Ex parte Lowery, 840 S.W.2d 550, 552 n.1 (Tex. App.Dallas 1992), revd on other grounds, 867 S.W.2d 41 (Tex. 1993). Thus, we will not brief a defendants case for him or her. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).
Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court cannot reverse a case on a theory not presented to the trial court or raised on appeal. Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). With no arguments or theories to support a request for reversal being made in connection with this conviction on appeal, there is nothing before this Court that we may review.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 28, 2010
Date Decided: April 29, 2010
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