in Re: Samuel Rios ( 2021 )

NO. 12-21-00190-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
SAMUEL RIOS, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Samuel Rios, acting pro se, filed this original proceeding, in which he seeks a writ
instructing Respondent to prepare copies of the trial records, the Anderson County District
Attorney’s work product file, evidence that was intended to be use at trial and not intended to be
used at trial, and contact information for the court reporter on his case. 1 On October 20, 2021,
the Clerk of this Court informed Relator that his petition fails to comply with appellate Rules
52.3(a)-(h) and (k) and 52.7. See TEX. R. APP. P. 52.3 (form and contents of petition); see also
TEX. R. APP. P. 52.7 (record). The notice warned that the petition would be referred to this Court
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It is unclear from Relator’s petition whether he seeks a writ of mandamus against the Honorable Mark A.
Calhoon, Judge of the 3rd District Court in Anderson County, Texas, or Teresia Coker, the Anderson County
District Clerk. The State of Texas is the Real Party in Interest. To the extent Relator complains of the District
Clerk, a district clerk is not a judge over which this Court has mandamus jurisdiction. See TEX. GOV’T CODE ANN.
art. 22.221(a), (b) (West Supp. 2020) (writ power); see also In re Mack, No. 10-17-00186-CR, 2017 WL 2819091,
at *1 (Tex. App.—Waco June 28, 2017, orig. proceeding) (mem. op., not designated for publication); In re Eaton,
No. 12–15–00118–CR, 2016 WL 6876502, at *1 (Tex. App.–Tyler, Nov. 22, 2016, orig. proceeding) (mem. op., not
designated for publication); In re Vargas, No. 01-12-00351-CV, 2012 WL 1454550, at *1 (Tex. App.—Houston
[1st Dist.] Apr. 26, 2012, orig. proceeding) (mem. op) (per curiam). Nor is there any indication that issuance of a
writ of mandamus against the District Clerk is necessary to protect this Court’s jurisdiction. See In re Talkington,
No. 12-07-00272-CR, 2007 WL 2178551, at *1 (Tex. App.—Tyler July 31, 2007, orig. proceeding) (mem. op., not
designated for publication); see also Ex parte Sanders, No. WR-80,356-01, 2013 WL 5872901, at *1 (Tex. Crim.
App. Oct. 30, 2013) (order, not designated for publication) (per curiam); In re Foster, No. 14-16-00698-CR, 2016
WL 5853282, at *1 (Tex. App.—Houston [14th Dist.] Oct. 6, 2016, orig. proceeding) (mem. op., not designated for
publication) (per curiam); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).
Thus, we construe this proceeding as one against Judge Calhoon.
for dismissal unless Relator provided the appendix and record on or before November 1. This
deadline expired without a response from Relator.
Generally, a party seeking mandamus relief must bring forward all that is necessary to
establish his claim for mandamus relief. See TEX. R. APP. P. 52. The petition must contain
certain items, including the identity of parties and counsel, a table of contents, an index of
authorities, a statement of the case, a statement of jurisdiction, issues presented, a statement of
facts, argument, and an appendix. See TEX. R. APP. P. 52.3(a)-(h), (k). Texas Rule of Appellate
Procedure 52.7 requires the relator to file a record as part of his petition in an original
proceeding. TEX. R. APP. P. 52.7. Specifically, a relator must file (1) a certified or sworn copy
of every document that is material to his claim for relief and that was filed in any underlying
proceeding; and (2) “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 complained.” TEX. R. APP. P. 52.7(a).
It is a relator’s burden to provide this court with a record sufficient to establish the right
to extraordinary relief. See In re Daisy, No. 12-13-00266-CR, 2014 WL 5577068, at *2 (Tex.
App.–Tyler Aug. 29, 2014, orig. proceeding) (mem. op., not designated for publication). In this
case, Relator did not provide a record in accordance with Rule 52.7. Absent a record, we cannot
determine whether Relator is entitled to relief. See In re McCreary, No. 12-15-00067-CR, 2015
WL 1395783 (Tex. App.–Tyler Mar. 25, 2015, orig. proceeding) (per curiam) (mem. op., not
designated for publication). Because Relator’s petition fails to comply with the appellate rules,
he presents nothing for this Court to review. 2 Therefore, we deny his petition for writ of
mandamus. All pending motions are overruled as moot.
Opinion delivered November 17, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable
rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by
counsel. In re Guerrero, No. 12-21-00100-CR, 2021 WL 3412558, at *1 n.3 (Tex. App.—Tyler Aug. 4, 2021, no
pet.) (mem. op., not designated for publication) (per curiam).
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 17, 2021
NO. 12-21-00190-CR
SAMUEL RIOS,
Relator
V.
HON. MARK A. CALHOON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Samuel Rios; who is the relator in appellate cause number 12-21-00190-CR and the defendant in
trial court cause number 24895, formerly pending on the docket of the 3rd Judicial District Court
of Anderson County, Texas. Said petition for writ of mandamus having been filed herein on
October 18, 2021, and the same having been duly considered, because it is the opinion of this
Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED
that the said petition for writ of mandamus be, and the same is, hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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