NO. 07-11-0369-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 5, 2011
______________________________
IN RE EMILIO CHAVEZ, JR., RELATOR
______________________________
ORIGINAL PROCEEDING ARISING OUT OF PROCEEDINGS
BEFORE THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-428,968; HONORABLE JIM B. DARNELL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
By this original mandamus proceeding, Relator, Emilio Chavez, Jr., an inmate
proceeding pro se and in forma pauperis, seeks to compel the Honorable Jim Bob
Darnell to grant his motion for new trial and allow him to appeal his conviction in trial
court cause number 2010-428,968.1 For the reasons expressed herein, we deny
Relator's request.
1
According to Relator's application, he plead guilty on February 15, 2011, and, pursuant to a plea bargain,
was sentenced to four years confinement. Relator contends there is "newly discovered" evidence of his
actual innocence.
Mandamus Standard of Review
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues 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.@ Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d
916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief, a
relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for
performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979).
Analysis
Initially, we address Relator's failure to comply with most of the mandatory
requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. Relator's petition
does not include the following: Identity of Parties,2 Table of Contents, Index of
Authorities, Statement of the Case, Issues Presented, Statement of Facts, Certification,
and Appendix. See generally Tex. R. App. P. 52.3(a) - (k). Most importantly, Relator
did not include a certified or sworn copy of the motion for new trial of which he
complains. See id. at (k)(1)(A).
According to Relator's petition, on June 9, 2011, while at his parole review
hearing, he learned for the first time that the evidence against him was insufficient to
2
We are able to discern that his complaint is directed at the Honorable Jim Bob Darnell, Presiding Judge
of the 140th District Court of Lubbock County.
2
support his conviction. He then sought permission from the trial court to appeal his
conviction. The only document filed with his petition is a letter from Judge Darnell in
which he explains that Relator entered into a plea bargain, agreed to waive his right of
appeal and executed a certification of defendant's right to appeal to that effect.3 Judge
Darnell also advised him that regardless of the certification, Relator failed to timely file a
notice of appeal from his conviction.4
Recognizing that pro se filings may be reviewed less stringently than those filed
by attorneys, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652
(1972), a party proceeding pro se must still comply with rules of procedure. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Even if we were to
review Relator's request for mandamus relief with patience and liberality, he has not
satisfied his burden to provide a sufficient record to enable this Court to consider his
complaint. See Walker, 827 S.W.2d at 837. Therefore, Relator has failed to establish
his entitlement to mandamus relief.
Consequently, Relator's petition for writ of mandamus is denied.
Patrick A. Pirtle
Justice
3
Relator's petition was not accompanied by copies of his judgment of conviction, a certification of
defendant's right of appeal, a motion for new trial or any other documents related to his request for
mandamus relief.
4
A timely notice of appeal is an essential jurisdictional requirement. An out-of-time appeal may be
requested by way of an application for a post-conviction writ of habeas corpus addressed to the Texas
Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 11.07 (West 2011).
3