In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00030-CV
IN RE BRUCE CARRINGTON, RELATOR
Original Proceeding
February 25, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Relator, Bruce Dwayne Carrington, has filed in this Court his petition for writ of
mandamus. In his petition, he again asks this Court to compel Respondent, the
Honorable Bradley S. Underwood, presiding judge of the 364th District Court of
Lubbock County, to fulfill his ministerial duties to receive and file all communications
between the jury and the trial court in trial court cause number 2003-402,456, Relator’s
underlying 2003 criminal proceeding.1 In that underlying criminal proceeding, Relator
was convicted of aggravated robbery and sentenced to thirty years’ incarceration.2
Relator’s Contentions
In his petition, Relator again advances his contentions that Respondent forged
the jury notes that appear as exhibits in the reporter’s record of the criminal trial and
then manufactured his responses to those forged jury notes. He has presented this set
of allegations previously in In re Carrington, No. 07-12-00220-CV, 2012 Tex. App.
LEXIS 8197, at *1–3 (Tex. App.—Amarillo Sept. 27, 2012, orig. proceeding). In his
previous petition seeking a writ of mandamus from this Court compelling Respondent to
provide Relator with the “real” jury note, Relator undertook a handwriting analysis to
support his contention that it was Respondent who wrote the jury notes that appear in
the record. See id. at *3. We declined to issue such a writ, refusing to resort to
speculation or supposition when determining whether to issue extraordinary relief. See
id. at *5–6 (citing In re Stormer, No. WR-66,865-01, 2007 Tex. Crim. App. Unpub.
LEXIS 1154, at *4 (Tex. Crim. App. June 20, 2007) (orig. proceeding) (per curiam); In re
Gray, No. 07-12-00152-CV, 2012 Tex. App. LEXIS 4262, at *8 (Tex. App.—Amarillo
1
Carrington cites Respondent’s duties outlined in TEX. CODE CRIM. PROC. ANN.
art. 36.27 (West 2006).
2
Carrington’s original direct appeal of his conviction was dismissed for want of
jurisdiction for failure to timely file a notice of appeal. See Carrington v. State, No. 07-
03-00541-CR, 2004 Tex. App. LEXIS 1112 (Tex. App.—Amarillo Feb. 4, 2004, no pet.)
(mem. op.). The Texas Court of Criminal Appeals granted Carrington an out-of-time
appeal. Ex parte Carrington, No. AP-75,094, 2005 Tex. Crim. App. Unpub. LEXIS 12
(Tex. Crim. App. Feb. 9, 2005) (orig. proceeding) (per curiam). This Court addressed
the merits of his appeal and affirmed his conviction, and the Texas Court of Criminal
Appeals refused his petition for discretionary review. See Carrington v. State, No. 07-
05-00091-CR, 2006 Tex. App. LEXIS 2867 (Tex. App.—Amarillo Apr. 10, 2006, pet.
ref’d) (mem. op.).
2
May 25, 2012, orig. proceeding) (per curiam) (mem. op.); and Frink v. Blackstock, 813
S.W.2d 602, 604 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding)).
In his pending petition, Relator has revised his approach and, this time, points to
an unsworn declaration he includes in his appendix, which is purportedly signed by the
man who served as jury foreman in the criminal proceeding. This unsworn declaration
states that the jury notes included in the reporter’s record were not written by the jury
foreman and describes the jury note that the foreman wrote and gave to the bailiff.
Relator goes on to point out that the note described by the jury foreman, what we may
call the hypothetical “real” jury note, is the note that was given to the trial court by the
bailiff and that was read in open court. According to Relator’s theory, then, only
sometime after the hypothetical “real” jury note was read into the record in open court in
the presence of all the parties, did Respondent forge the jury notes that were included in
the record on direct appeal from his criminal conviction. Then, according to Relator’s
allegations, Respondent went on to falsify the record by creating responses to the
“forged” jury notes, and it was these “forged” notes and “falsified” responses that were
included as exhibits in the reporter’s record. Relator asks this Court to compel
Respondent to comply with the duties imposed on him pursuant to article 36.27 to make
the hypothetical “real” jury note part of the record.
Availability of Mandamus
To be entitled to mandamus relief, a relator must show that he has no adequate
remedy at law to redress the alleged harm and that he seeks to compel a ministerial act,
not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial
3
Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
Relator bears the burden to properly request and show entitlement to mandamus relief.
See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). “Even a
pro se applicant for a writ of mandamus must show himself entitled to the extraordinary
relief he seeks.” Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.]
1992, orig. proceeding) (per curiam); see In re Villarreal, 96 S.W.3d 708, 710 (Tex.
App.—Amarillo 2003, orig. proceeding) (concluding that incarcerated relator acting pro
se still obligated to abide by pertinent rules of procedure, including satisfying burden of
proof).
A petition for writ of mandamus must set out clearly, fully, and unreservedly, by
direct and positive allegation, every fact necessary to show why the requested relief is
mandated. Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982)
(orig. proceeding) (en banc). A mandamus action requires certainty as to both
pleadings and facts. Johnson v. Hughes, 663 S.W.2d 11, 12 (Tex. App.—Houston [1st
Dist.] 1983, orig. proceeding). We may not deal with disputed areas of fact in a
mandamus proceeding. See West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978) (orig.
proceeding). This “stringent test of exactness” is necessary because mandamus is an
extraordinary remedy that should not issue “without careful, individual scrutiny of the
facts alleged.” Fisher v. Harris Cnty. Republican Exec. Comm., 744 S.W.2d 339, 340
(Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) (quoting Bush v. Vela, 535
S.W.2d 803, 805 (Tex. Civ. App.—Corpus Christi 1976, orig. proceeding)).
To that end, the relator must provide the reviewing court with a record sufficient
to establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re
4
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see also
TEX. R. APP. P. 52.3(k) (specifying required contents for appendix), 52.7(a) (providing
that a relator must file with petition “a certified or sworn copy of every document that is
material to the relator’s claim for relief and that was filed in any underlying proceeding”).
Moreover, a relator must certify that he has reviewed the petition and concluded that
every factual statement in the petition is supported by competent evidence included in
the appendix or record. See TEX. R. APP. P. 52.3(j).
Analysis
Included in Relator’s appendix are copies of three exhibits from the reporter’s
record of the proceedings in his underlying direct appeal of his 2003 conviction,
appellate cause number 07-05-00091-CR. He identifies these exhibits as the “forged”
jury notes and the trial court’s “falsified” responses. As we have noted, Relator also
includes in his appendix an unsworn declaration purportedly signed by the man who
served as foreman during the criminal trial. In this declaration, the declarant states that
the jury notes included in the appendix and identified by Relator as the “forged” jury
notes were not notes that the jury foreman prepared.3 Relator also asserts in his
petition that the “real” jury note, the one referred to in the unsworn declaration, was the
jury note “given to the court by the bailiff from the jury” and “was the note that was read
3
Specifically, the declaration purportedly signed by the jury foreman stated that
the original jury note the foreman prepared a decade earlier asked simply, “Did the
police officers show the cab driver the knife?” We observe that the unsworn declaration
refers to only one jury note; other than allegations of forgery on the part of Respondent,
there is no attempted explanation as to the discrepancy between the number of notes in
the record and the solitary “real” jury note. Relator maintains that this “real” note was
the jury note Respondent read in open court pursuant to article 36.27.
5
in open court.” Given this, we understand Relator to assert that the converse is also
true, that the “forged” jury notes were not the notes the trial court read in open court.
We pause at this point to note that an appellate court may take judicial notice of
its own records in the same or related proceedings involving the same or nearly the
same parties. Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987) (en banc);
see also In re Weisinger, No. 12-12-00013-CR, 2012 Tex. App. LEXIS 2151, at *5 n.1
(Tex. App.—Tyler Mar. 19, 2012, orig. proceeding) (mem. op.) (citing Turner as
authority for taking judicial notice of record in underlying criminal appeal when
determining related petition for writ of mandamus); Trevino v. Pemberton, 918 S.W.2d
102, 103 n.2 (Tex. App.—Amarillo 1996, orig. proceeding) (citing Turner for similar
conclusion and observing that mandamus proceeding and underlying cause were
sufficiently related such that, in a pending mandamus proceeding, appellate court may
judicially notice record in underlying cause). Because Relator’s petition deals directly
with the record in appellate cause number 07-05-00091-CR, because Relator was a
party to those proceedings, and because Relator has presented for our consideration
certain portions of that very record, we conclude that the instant mandamus proceeding
and the direct appeal of Relator’s criminal conviction are sufficiently related such that
we may take judicial notice of our own official records in appellate cause number 07-05-
00091-CR. Further, the gravity of the allegations Relator lodges against Respondent
and our duty to carefully and individually scrutinize the facts alleged call on us to take
such judicial notice. See Fisher, 744 S.W.2d at 340.
Conspicuously absent from Relator’s appendix is that portion of the reporter’s
record in cause number 07-05-00091-CR that, if it reflected what Relator represented it
6
did, would lend virtually unassailable support to Relator’s contention that the
hypothetical “real” jury note was the note read in open court. Having found such a
glaring omission curious, we first considered our authority to judicially notice the
remaining portion of the record and, having determined that we were authorized to do
so, consulted the official, certified record in the direct appeal in cause number 07-05-
00091-CR. See In re Weisinger, 2012 Tex. App. LEXIS 2151, at *5 n.1.
On pages 21 through 22 of volume 6 of the reporter’s record, we see that, in the
presence of the State, Relator, and defense counsel, Respondent read in open court
two jury notes and the trial court’s proposed and accepted responses to them, all of
which are the very same notes and responses included in the reporter’s record and all
of which Relator has included in his appendix and identified as the purported “forged”
jury notes and “falsified” responses. By asserting that the hypothetical “real” note was
the note read in open court, Relator has grossly misrepresented to this Court the facts
supporting his petition for writ of mandamus.4 In doing so, Relator has unequivocally
failed the “stringent test of exactness” and has likewise failed to show his clear and
unqualified right to the extraordinary relief he seeks, and we deny him such. See
Fisher, 744 S.W.2d at 340.
4
Observing that such a gross misrepresentation to the Court is a potential
ground for sanctions, we admonish Relator against filing another petition advancing
these baseless allegations that Judge Underwood forged jury notes and falsified the
record. Doing so will prompt this Court’s consideration of imposition of sanctions for
filing a groundless petition. See TEX. R. APP. P. 52.11(a); see also id. 52.11(c), (d)
(characterizing the following as also sanctionable conduct: “grossly misstating or
omitting an obviously important and material fact in the petition” and “filing an appendix
or record that is clearly misleading because of the omission of obviously important and
material evidence or documents”).
7
Conclusion
Because Relator has provided no credible evidence that would show that
Respondent has failed to comply with article 36.27, we conclude that Relator has failed
to establish that he is entitled to the extraordinary relief he requests. Accordingly, we
deny his petition for writ of mandamus. TEX. R. APP. P. 52.8(a).
Mackey K. Hancock
Justice
8