in Re: Arthur Herbert Phillips

• Court: Court of Appeals of Texas
• Decided: January 31, 2022
• Docket: 05-21-01069-CV
• Status: Published

Opinion

DENIED and Opinion Filed January 31, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01068-CV No. 05-21-01069-CV No. 05-21-01070-CV

IN RE ARTHUR HERBERT PHILLIPS, Relator

Original Proceedings from the 199th Judicial District Court Collin County, Texas Trial Court Cause Nos. 199-80602-89, 199-80603-89 & 199-80604-89

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Myers Arthur Herbert Phillips has filed a petition for writ of mandamus seeking to

nullify the trial court’s judgments in these cases on the ground the judgments are

void because the trial court should have conducted a competency hearing before

accepting his guilty pleas and imposing fifty-year sentences. We deny relief.

Included with relator’s petition is a partial motion appearing to seek permission to

file his petition. Because the motion is unnecessary, we deny it as moot. See TEX. R.

APP. P. 52.1.

A petition seeking mandamus relief must include a certification stating that

the relator “has reviewed the petition and concluded 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). The certification must state substantially what is written in

rule 52.3(j). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig.

proceeding).

In this case, relator has filed an “Inmate’s Declaration” stating under penalty

of perjury “that according to [his] belief the facts stated in this instrument are true

and correct.” Relator’s declaration does not indicate that the statements in the

petition are supported by competent evidence in the appendix or record. Thus his

certification does not meet the requirements of rule 52.3(j). See id.

Additionally, relator’s petition is not accompanied by a sufficient record to

support his assertions. Relator bears the burden to provide the Court with a sufficient

record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833,

837 (Tex. 1992) (orig. proceeding). To meet his evidentiary burden, rule

52.3(k)(1)(A) requires relator to file an appendix with his petition that contains “a

certified or sworn copy of any order complained of, or any other document showing

the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule 52.7 requires relator

to file with the petition “a certified or sworn copy of every document that is material

to the relator’s claim for relief that was filed in any underlying proceeding.” TEX. R.

APP. P. 52.7(a)(1). Relator’s status as an inmate does not relieve him of his duty to

comply with the rules of appellate procedure. In re Foster, 503 S.W.3d 606, 607

(Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam).

–2– Relator’s petition is supported only by an uncertified, unsworn copy of a

single page of medical records and a one-page summary he prepared of his diagnosis

and medications from mental health treatment in 1969. Without a sufficient record

of documents to support his petition, relator cannot show he is entitled to mandamus

relief. See Butler, 270 S.W.3d at 759.

Finally, we note that even if relator corrected the deficiencies we have

described, he is not entitled to relief. Although filed as a petition for writ of

mandamus, relator’s petition is a collateral attack on his final felony convictions

seeking what should be characterized as article 11.07 habeas relief. See TEX. CODE

CRIM. PROC. ANN. art. 11.07, §1; In re Ayers, 515 S.W.3d 356, 356–57 (Tex. App.—

Houston [14th Dist.] 2016, orig. proceeding) (per curiam); see also In re Jones, No.

01-20-00490-CR, 2020 WL 4210489, at *1 (Tex. App.—Houston [1st Dist.] July

23, 2020, orig. proceeding) (mem. op, not designated for publication).

Only the court of criminal appeals may grant article 11.07 relief. See TEX.

CODE CRIM. PROC. ANN. art. 11.07, §§3, 5; Bd. of Pardons and Paroles ex rel. Keene

v. The Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig.

proceeding); see also In re Morrison, No. 05-15-00519-CV, 2015 WL 1910329, at

*1 (Tex. App.—Dallas 2015, orig. proceeding) (mem. op.) (court of appeals has no

jurisdiction over complaints that should be raised in post-conviction 11.07 writ

application).

–3– Because relator’s petition is deficient and relator has not shown he is entitled

to relief, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

/Lana Myers// 211068f.p05 LANA MYERS 211069f.p05 JUSTICE 211070f.p05

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