IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 12, 2001
______________________________
IN RE: DANNIE LEE MITCHELL
_________________________________
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
Relator Dannie Lee Mitchell applies for a writ of mandamus/prohibition directing respondent, Honorable Bradley Underwood, to set aside relator's conviction in Cause No. 93-416,328 in the 364th District Court of Lubbock County, and to enter an order of acquittal. We deny the petition.
Seeking a "writ of mandamus/prohibition," relator claims that the indictment underlying his conviction in Cause No. 93-416,328 in the 364th District Court of Lubbock County was defective, he was denied counsel before and at the time he pled guilty, and he received ineffective assistance of counsel after he pled guilty. The documents attached to relator's application for writ are copies of (1) an indictment of relator in Lubbock County for robbery, enhanced by two prior felonies; (2) a judgment of guilty dated January 19, 1993, with a sentence of 25 years confinement in the TDC pursuant to a plea bargain; and (3) an affidavit of inability to employ counsel and order signed by respondent on January 19, 1993, appointing counsel for relator in Cause No. 93-416,328 in Lubbock County.
Relator asserts that the Court of Criminal Appeals has ruled that defects in an indictment can be challenged at trial or on appeal. He does not allege or attach documents, however, showing whether he or his counsel challenged the indictment pretrial, filed a motion for new trial to assert his current claims of ineffective assistance of counsel or errors in the indictment, whether he utilized his right to appeal from his conviction to assert the claims he now makes, or whether he has sought relief post-trial as permitted by the Code of Criminal Procedure. See Tex. Crim. Proc. Code Ann. art. 28.01 (pre-trial motions to challenge form or substance of indictment), art. 44.01 (defendant has right of appeal), art. 11.07 (writ of habeas corpus seeking relief from felony judgment imposing sentence other than death); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000) (appellant must offer proof as to ineffective assistance of counsel to prevail on such claim); Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993) (a complaint of ineffective assistance of counsel may be raised in a motion for new trial).
A writ of mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). To establish an abuse of discretion, the complaining party must demonstrate that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and principles. See Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985). It is the relator's burden to show entitlement to the relief being requested. See generally Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Relator must file with the petition a certified sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding and a properly authenticated transcript of any relevant testimony from any underlying proceeding including any exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter about which complaint is made. Tex. R. App. P. 52.7(a).
Relator's pleadings do not demonstrate that he has not had and utilized, or that he does not now have, a remedy provided by law other than mandamus relief. Accordingly, (1) relator's Motion Request for Leave to File is granted; (2) relator's Motion of Request to Suspend Number of Copies to be Filed is granted; (3) relator's "Writ of Mandamus/Prohibition" is denied. Tex. R. App. P. 52.8(a). We offer no opinion on the merits of relator's substantive claims as set out in his petition.
Phil Johnson
Justice
Do not publish.
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NO. 07-07-00036-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 28, 2010
ROBERT L. GONZALES, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-414,463; HONORABLE CECIL G. PURYEAR, JUDGE
Before QUINN, C.J., and CAMPBELL, J., and BOYD, S.J.[1]
MEMORANDUM OPINION
Appellant Robert L. Gonzales, Jr. appealed from his jury conviction of two counts of aggravated sexual assault and the resulting two concurrent sentences of life imprisonment. In our opinion, Gonzales v. State, No. 07-07-0036-CR, 2009 Tex.App. LEXIS 1435 (Tex.App.Amarillo Feb. 27, 2009) (mem. op., not designated for publication), we affirmed the trial court=s judgment as to one count and vacated the judgment as to the other count, finding that conviction of both counts violated the Double Jeopardy Clause. The Court of Criminal Appeals reversed our decision, finding no double jeopardy violation, and remanded the cause for our consideration of the third point of error appellant raised in his appeal. Gonzales v. State, 304 S.W.3d 838 (Tex. Crim.App. 2010).
Appellants third point asserted error in the courts charge. He argues the charge included an Aoverly expansive@ and improper definition of the term Afemale sexual organ,@ pertinent to the count charging appellant with aggravated sexual assault of his eight-year-old daughter by penetration of her sexual organ. The charge defined the term as follows: A>Female sexual organ=@ means and includes the vulva or tissue immediately surrounding the vagina and the vagina and female genitalia or any parts between the labia of the female genitalia.@ Appellant objected to the definition, stating that the instruction amounted to an improper comment on the evidence and would confuse or mislead the jury. Appellant also objected on the basis that the phrase is not statutorily defined and thus should be left to the jury to define in accordance with common usage.
Appellant cites Vernon v. State, 841 S.W.2d 407 (Tex.Crim.App. 1992) and Oliva v. State, 942 S.W.2d 727 (Tex.App.BHouston [14th Dist.] 1997, pet. dismissed) to support his contention the definition was improper. However, these cases note only that because the term Afemale sexual organ@ is not defined by statute, the jury is free to apply the term through its common and ordinary meaning. Neither case stands for the proposition that a trial court is prohibited from providing a definition that will assist the jury.
Appellant=s specific objection to the definition of Afemale sexual organ@ included in the court=s charge has been rejected in other cases in which courts have given an almost identical definition. See Lara v. State, No. 05-02-00611-CR, 05-02-00612BCR, 2003 WL 42418 (Tex.App.BDallas January 7, 2003, pet. ref=d) (mem. op., not designated for publication); Ralph v. State, No. 05-00-00706-CR, 2001 WL 522009 (Tex.App.BDallas May 17, 2001, pet. ref=d) (mem. op., not designated for publication) (both discussing inclusion of same definition of Afemale sexual organ@ as that supplied here and finding the trial court did not abuse its discretion) (each citing Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.BDallas 1994, no pet.). Like the Dallas court, we find no abuse of discretion in the trial court=s inclusion of its definition of the term Afemale sexual organ,@ and overrule appellant=s third point of error.
All appellants points of error having been resolved against him, we affirm the trial courts judgment.
James T. Campbell
Justice
Do not publish.
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.