In Re: Charles McCarty--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-05-00355-CR

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IN RE: CHARLES MCCARTY ) AN ORIGINAL PROCEEDING

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) IN MANDAMUS

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OPINION ON PETITION FOR WRIT OF MANDAMUS

Relator Charles McCarty seeks a writ of mandamus compelling the trial court to provide the record requested in his motion to obtain the trial records for purposes of filing a petition for writ of habeas corpus.

To obtain mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law. Dickens v. Court of Appeals for Second Supreme Judicial Dist., 727 S.W.2d 542, 548 (Tex.Crim.App. 1987). AAn act is >ministerial= if it constitutes a duty clearly fixed and required by law.@ State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App. 1987). An indigent criminal defendant is not entitled to a free transcription of prior proceedings for use in pursuing post-conviction habeas corpus relief. See In re Trevino, 79 S.W.3d 794, 796 (Tex.App.--Corpus Christi 2002, orig. proceeding); Eubanks v. Mullin, 909 S.W.2d 574, 577 (Tex.App.--Fort Worth 1995, orig. proceeding ); Escobar v. State, 880 S.W.2d 782, 783-84 (Tex.App.--Houston [1st Dist.] 1993, no pet.). Thus, the act that Relator seeks to compel is not one that is clearly required by law. Moreover, this Court does not have jurisdiction in final post-conviction felony proceedings. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991); In re McAfee, 53 S.W.3d 715, 718 (Tex.App.--Houston [1st Dist.] 2001, orig. proceeding).

Accordingly, the petition for writ of mandamus is denied.

December 8, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)