In Re: Timothy Tom Talkington--Appeal from 8th District Court of Rains County

NOS. 12-07-00272-CR

12-07-00273-CR

12-07-00274-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE EIGHTH

IN RE:

JUDICIAL DISTRICT COURT OF

TIMOTHY TOM TALKINGTON

RAINS COUNTY, TEXAS

MEMORANDUM OPINION

Timothy Tom Talkington seeks a writ of mandamus requiring the District Clerk of Rains County, Texas to transmit his notice of appeal to this court. We deny the petition.

A court of appeals has the authority to issue writs of mandamus against a judge of a district or county in the court of appeals district and all writs necessary to enforce its jurisdiction. Tex. Gov t Code Ann. 22.221 (Vernon 2004). For mandamus to issue, the party seeking mandamus must show that there is no other adequate remedy available and that the act sought to be mandated is ministerial. Whitsitt v. Ramsay, 719 S.W.2d 333, 335 (Tex. Crim. App. 1986). In order for a district clerk to fall within our jurisdictional reach, it must be established that the issuance of the writ of mandamus is necessary to enforce our jurisdiction. See Tex. Gov t Code Ann. 22.221(a); In re Coronado, 980 S.W.2d 691, 692-93 (Tex. App. San Antonio 1998, orig. proceeding). We have jurisdiction to issue a writ of mandamus against a district clerk for failure to forward to this court a notice of appeal delivered to the clerk for filing because such is necessary to enforce our jurisdiction. In re Washington, 7 S.W.3d 181, 182 (Tex. App. Houston [1st Dist.] 1999, orig. proceeding).

Talkington alleges that he was convicted for the felony offenses of aggravated sexual assault and indecency with a child in trial court cause numbers 4265, 4266, and 4267. He alleges further that on June 23, 2005, his counsel filed a notice of appeal in these causes with the Rains County District Clerk who failed to transmit the notice to this court. As proof that his notice of appeal was filed, Talkington refers us to an exhibit attached to his mandamus petition. However, the document Talkington relies upon is the trial court s certification of Talkington s right to appeal in each trial court cause, see Tex. R. App. P. 25.2(d), not a notice of appeal. See Tex. R. App. P. 26.2. Nothing in the record before us shows that Talkington s counsel filed a notice of appeal in the referenced cause numbers. Because Talkington has not demonstrated that the notice of appeal was filed with the district clerk for transmission to this court, he has not shown that he is entitled to mandamus relief. Accordingly, the petition for writ of mandamus is denied.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)