in Re Lawrence Higgins

NO. 07-03-0157-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E APRIL 2, 2003 ______________________________ IN RE LAWRENCE HIGGINS , Relator ______________________________ ORIGINAL PROCEEDING _______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. (1) Pending before this court is a pro se motion for writ of mandamus seeking that we compel "the 251st [D]istrict Court to proceed with operation of law in the cause #50,468-6." The latter cause apparently involves a lawsuit against the Randall County Sheriff's Department. Furthermore, we construe this as a request to order the Hon. Patrick Pirtle, Judge of the 251st District Court in Randall County, to rule on relator Lawrence Higgins's allegedly pending motions "to appoint an expert investigator" and "to refer [the] action to trial by jury." We deny the motion for the following reasons. First, Higgins failed to accompany his petition with the requisite filing fee or an affidavit of indigence. (2) When a party seeks to invoke the jurisdiction of this court through a notice of appeal, an affidavit of indigence is required of one who cannot pay the costs in the appellate court. Tex. R. App. P. 20.1. This rule is no less applicable in actions for writs of mandamus, and we are not required to rule on matters without a proper showing of indigence. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.--Amarillo 2001) (orig. proceeding). Second, the petition does not comply with the applicable rules of appellate procedure. That is, Higgins failed to verify the factual statements in his petition and to incorporate a table of contents, an index of authorities, a statement of the case, statement of jurisdiction, a statement of the issues presented, a statement of facts, or a section developing his argument. (3) Tex. R. App. P. 52.3. Also missing is an appendix including, among other things, a "certified or sworn copy of . . . [the] document[s] showing the matter complained of." Id. In this case, those requisite documents would be, at the very least, the motions upon which he seeks a ruling. Finally, a trial court does not abuse its discretion until the complainant establishes that the court had a legal duty to perform a non-discretionary act, was asked to perform the act, and failed or refused to do so. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). Application of this rule would require Higgins to illustrate that the trial court was aware of the motions. However, we have nothing before us showing that the trial court knew of them. Nor can we impute such knowledge simply because they may have been filed with the district clerk. See In re Chavez, 62 S.W.3d at 222 (stating that we know of no rule which imputes the clerk's knowledge to the trial court). For these reasons, we deny, without prejudice, the petition for writ of mandamus. Brian Quinn Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003). 2. Higgins asserts in his petition that he has filed a "civil action claims suit." Further, the address on his letter to this court indicates that he is incarcerated. We therefore assume that he has filed an affidavit of indigence in the trial court, but we have no record before us to show that fact. 3. A pro se litigant is required to comply with the rules of appellate procedure. Holt v. F. F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.--Amarillo 1998, pet. denied). nt to support appellant's convictions for murder, aggravated robbery, and unlawfully possessing a firearm under the standards pronounced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). Double Jeopardy Next, appellant argues that his conviction for murder required proof of an aggravated robbery, and, therefore, his conviction for aggravated robbery violated principles of double jeopardy. He also contends that since possession of a firearm by a felon is a lesser-included offense of aggravated robbery, his conviction for it similarly violated concepts of double jeopardy. We overrule the issue. With regard to the greater/lesser-included offense issue, we note that the authority cited by appellant, e.g., Ex parte Rodriguez, 600 S.W.2d 835 (Tex. Crim. App. 1980) and Ex parte Harris, 583 S.W.2d 419 (Tex. Crim. App. 1979), dealt with convictions arising from separate causes or proceedings. Since that time, the Court of Criminal Appeals has held that the same double jeopardy concerns do not arise when the multiple offenses are tried in one cause. Cervantes v. State, 815 S.W.2d 569, 573-74 (Tex. Crim. App. 1991). The Cervantes court stated that double jeopardy was not necessarily implicated merely because the State was required to prove aggravated robbery in order to prove attempted capital murder. Id. at 574. All depends upon whether each offense has an element different from the other. Id. at 573. And, that exists here. To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of a theft coupled with aggravating circumstances; such was not required to prove either murder or a felon in possession of a firearm. To prove murder, the State had to establish that an act of appellant caused Seuss' death; that element is missing in both the crimes of aggravated assault and a felon possessing a firearm. Finally, in establishing the latter crime, the State had to prove appellant was a felon, and that is not an element of either murder or aggravated robbery. So, the test espoused in Cervantes was met and no problems with double jeopardy arose. Finally, the United States Supreme Court authorities cited by appellant are also inapposite. They either dealt with succeeding prosecutions, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), or the levying of consecutive sentences. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Neither circumstance was involved here. Extraneous Offense Appellant next complains of the admission into evidence of the testimony of Billy and Jessica Cain which showed that he had been in the possession of a small handgun shortly before the murder of Seuss. He contends the evidence is not relevant to whether he possessed a handgun on November 9 or 10. We overrule the issue. As previously discussed, the evidence of appellant's prior sightings with a .22 caliber handgun was used to corroborate the testimony of the accomplice witnesses. Evidence of extraneous offenses is admissible for that purpose. Lawton v. State, 913 S.W.2d 542, 553 n.9 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998); Hernandez v. State, 52 S.W.3d 268, 282 (Tex. App. - Corpus Christi 2001, no pet.). Moreover, because no eyewitnesses other than those who appellant deemed to be accomplices identified appellant as the assailant, circumstantial evidence like that at issue here was necessary to tie him to the offense. Finally, a great amount of time was not spent in developing the evidence in dispute. Thus, we conclude that the trial court's decision did not evince an instance of abused discretion when tested against the indicia discussed in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991). Recusal of Judge Finally, appellant claims the trial judge should have recused himself because he made statements that indicated he was prejudiced against appellant. Apparently those statements consisted of its "failure to charge the jury concerning Gilbreath's status as an accomplice witness" and comment that the sentences "should run 'stacked.'" Yet, how those comments evinced any bias or prejudice or otherwise disqualified the trial judge went undeveloped; thus we consider them insufficiently briefed. See Billy v. State, 77 S.W.3d 427, 429 (Tex. App.-Dallas 2002, pet. ref'd) (requiring the appellant to provide substantive analysis). We further note that at least with regard to the allusion to stacking the sentences, appellant concedes that he was not harmed. Finally, we note that he did not request any relief or argue that he was entitled to any. Given these circumstances, we overrule the issue. Having overruled each issue, we affirm the judgment of the trial court. Brian Quinn Chief Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).