NUMBERS 13-08-00240-CR,
13-08-00241-CR,
13-08-00242-CR,
& 13-08-00243-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE DAVID H. BAILEY
On Petition for Writ of Mandamus
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Vela
Per Curiam Memorandum Opinion1
Relator, David Bailey, pro se, filed a petition for writ of mandamus in four causes in
this Court on April 24, 2008, asking us to order the trial court to execute a nunc pro tunc
order allowing relator’s sentences to run concurrently rather than consecutively.2 Relator
further complains that the trial court lost or refused to release the statement of facts from
1
See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinion but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
2
Relator also filed a “m otion for leave” to file this petition for writ of m andam us. W e dism iss relator's
m otion for leave to file the petition for writ of m andam us as m oot because the Texas Rules of Appellate
Procedure no longer require m otions for leave in original proceedings. See generally T EX . R. A PP . P. 52 &
cm t.
the hearing on relator’s June 6, 1988 plea of nolo contendere on two felony offenses of
aggravated sexual assault and two counts of injury to a child.3
The Court, having examined and fully considered the petition for writ of mandamus,
is of the opinion that relator has not shown himself entitled to the relief sought. In the
instant case, the petition generally fails to comply with Texas Rule of Appellate Procedure
52.3. See generally TEX . R. APP. P. 52.3 (delineating the required form and contents for
a petition for writ of mandamus). Further, relator has failed to provide a record sufficient
to establish his right to mandamus relief. See id. 52.3(j), 52.7. Moreover, mandamus relief
is appropriate if relator establishes that (1) he has no adequate remedy at law to redress
his alleged harm, and (2) what he seeks to compel is a ministerial act, not involving a
discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals
at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).
The second of these requirements is satisfied if the relator can show he has “a clear
right to the relief sought,” that is to say, “when the facts and circumstances dictate but one
rational decision” under “unequivocal, well-settled, and clearly controlling legal principles.”
See id. Relief should be denied If the relator fails to satisfy either aspect of this two-part
test. See id.
In the instant case, relator has failed to satisfy the second part of this two part test
by establishing that he has a clear right to the relief sought. In this regard, it appears that
relator actually seeks post-conviction relief from a final felony conviction, and accordingly,
his remedy is a post-conviction writ of habeas corpus returnable to the court of criminal
3
W e note that this Court has previously denied a sim ilar petition for writ of m andam us, filed by relator,
challenging the trial court’s order that his sentences run consecutively. See In re Bailey, No. 13-06-00421-CR,
13-06-00422-CR, 13-06-00423-CR, 13-06-00424-CR, 2006 Tex. App. LEXIS 6786, * 1-2 (Tex. App.–Corpus
Christi July 31, 2006, orig. proceeding).
2
appeals. See, e.g., Ex parte Madding, 70 S.W.3d 131, 136-37 (Tex. Crim. App. 2002); Ex
parte Voelkel, 517 S.W.2d 291, 292-93 (Tex. Crim. App. 1975).
For the foregoing reasons, the petition for writ of mandamus is DENIED. See TEX .
R. APP. P. 52.8(a).
PER CURIAM
Do not publish. See TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 1st day of May, 2008.
3