in Re: Aaron Wade Smith

• Court: Court of Appeals of Texas
• Decided: March 22, 2019
• Docket: 05-19-00268-CV
• Status: Published

Opinion

DENY; and Opinion Filed March 22, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00268-CV

IN RE AARON WADE SMITH, Relator

Original Proceeding from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 060321

MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Osborne Relator Aaron Wade Smith purportedly filed a motion titled “Habeas Corpus / District

Court” in the trial court on November 4, 2018. In that motion, relator seeks a copy of the trial

transcript or, alternatively, access to the trial transcript, for use in preparing a post-conviction

petition for writ of habeas corpus. In this original proceeding, relator seeks a writ of mandamus

directing the trial court to rule on and grant relator’s motion for a copy of the trial transcript.

To establish a right to mandamus relief in a criminal case, the relator must show that the

trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.

Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). A trial court has a

ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.

proceeding). A trial court has a reasonable time within which to consider a motion and to rule. In

re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding). This Court has

jurisdiction to direct the trial court to rule but not to compel the trial court to rule a certain way on

an issue involving judicial discretion. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—

Texarkana 2008, orig. proceeding) (“While we have jurisdiction to direct the trial court to make a

decision, we may not tell the court what that decision should be.”).

As the party seeking relief, the relator has the burden of providing the Court with a

sufficient mandamus record to establish his right to mandamus relief. Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rules 52.3 and 52.7 require the relator to provide

“a certified or sworn copy” of certain documents, including any order complained of, any other

document showing the matter complained of, and every document that is material to the relator’s

claim for relief that was filed in any underlying proceeding. TEX. R. APP. P. 52.3(k)(1)(A),

52.7(a)(1). Rule 52.3(j) requires the relator to certify “that every factual statement in the petition

is supported by competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j).

“Because the record in a mandamus proceeding is assembled by the parties, this Court

strictly enforces the authentication requirements of rule 52 to ensure the integrity of the mandamus

record.” In re McKinney, No. 05-14-01513-CV, 2014 WL 7399301, at *1 (Tex. App.—Dallas

Dec. 15, 2014, orig. proceeding). The rules apply equally to all parties, whether a party is

represented by counsel or not. In re Vasquez, No. 05-15-00592-CV, 2015 WL 2375504, at *1

(Tex. App.—Dallas May 18, 2015, orig. proceeding). “If a pro se litigant is not required to comply

with the applicable rules of procedure, he would be given an unfair advantage over a litigant who

is represented by counsel.” In re McKinney, 2014 WL 7399301, at *1 (citing Holt v. F.F. Enters.,

990 S.W.2d 756, 759 (Tex. App.–Amarillo 1998, pet. denied)). “There cannot be two sets of

procedural rules, one for litigants with counsel and the other for litigants representing themselves.”

Id. (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)).

–2– Relator has not provided a record in compliance with rules 52.3 and 52.7. Relator has

attached non-file-stamped, non-certified copies of the motion purportedly filed in the trial court on

November 4, 2018 and the motion to compel asking for a ruling on the motion. Relator has not

included a docket sheet or other form of proof that those motions were filed and the trial court has

not ruled on the motions. Further, relator has not certified “that every factual statement in the

petition is supported by competent evidence included in the appendix or record.” TEX. R. APP. P.

52.3(j). In addition, relator’s petition does not include an affidavit or unsworn declaration

unequivocally stating that the documents attached to the petition are true and correct copies of the

original documents filed in the trial court. We may not, therefore consider the motions sworn

copies of the originals. See In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig.

proceeding) (relator’s affidavit insufficient to render documents sworn copies of the originals);

TEX. R. APP. P. 52.3(k), 52.7.

This record is insufficient to establish that the motions were properly filed and timely

presented and that the trial court was asked to rule but failed to do so within a reasonable time.

Accordingly, we deny relator’s petition for writ of mandamus without prejudice to refiling a

petition for writ of mandamus accompanied by a certified or sworn record demonstrating that

relator properly filed and timely presented his motion for a copy of the trial transcript to the trial

court, relator asked for a ruling on the motion, and the trial court refused or failed to rule on the

motion within a reasonable time. See TEX. R. APP. P. 52.8(a); see also In re Molina, 94 S.W.3d

885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).

/Leslie Osborne/ LESLIE OSBORNE JUSTICE 190268F.P05

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