in Re: Arthur L. Robertson-El

• Court: Court of Appeals of Texas
• Decided: January 14, 2022
• Docket: 05-21-01067-CV
• Status: Published

Opinion

DENIED and Opinion Filed January 14, 2022

In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-01067-CV

IN RE ARTHUR L. ROBERTSON-EL, Relator

Original Proceeding from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F97-03335-K

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Carlyle Arthur L. Robertson-El has filed a petition for writ of mandamus to compel

the trial court to submit relator’s “premature notices of appeal” and bills of

exceptions to the prosecutor, sign the bills of exceptions, and file them with the

district clerk. We deny relief.

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 Unsworn Declaration” stating “under

penalty of perjury that the forgoing is true and correct to the best of my knowledge.”

Relator’s inmate unsworn declaration does not certify that the statements in the

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

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

Moreover, relator’s petition is not supported by a record. 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(a)(1) 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).

Relator’s petition is not supported by a record as described in rule 52. The

only documents filed with his petition are two certified mail receipts showing he

filed documents with the district clerk. There are no copies of the notices of appeal

and bills of exceptions he describes in his petition.

–2– Without supporting documentation, relator cannot show this Court he is

entitled to mandamus relief. See Butler, 270 S.W.3d at 759; see also In re Prado,

522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.) (to obtain

mandamus relief for failure to rule on motion, relator must show (1) trial court had

legal duty to rule on motion, (2) relator requested ruling, and (3) trial court failed or

refused to rule); In re Blakeney, 254 S.W.3d 659, 661–62 (Tex. App.—Texarkana

2008, orig. proceeding) (no mandamus relief absent proof motion was filed,

presented to the trial court with a request for a ruling, and trial court given reasonable

time to issue ruling).

Finally, even if relator filed a new petition correcting the deficiencies we have

identified, he would not be entitled to relief. Our records show relator was convicted

of murder and sentenced to ninety years in prison for the offense. This Court affirmed

his conviction in 2000. See Robertson v. State, No. 05-98-00089-CR, 2000 WL

10297 (Tex. App.—Dallas Jan. 7, 2000, pet. ref’d). Relator’s direct appeal has long

been adjudicated, and any notices of appeal and bills of exception he seeks to file

are moot. See TEX. R. APP. P. 26.2(a), 27.1(b), 33.2(c)(2) (describing timing of filing

of notices of appeal, prematurely filed notices of appeal, and bills of exception).

After the trial court’s plenary jurisdiction expires, it does not retain general

jurisdiction over a case. State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002)

(plurality op.). The trial court retains limited jurisdiction to address certain matters

such as ensuring that a higher court’s mandate is carried out, fact finding on habeas

–3– applications, and determining whether a convicted person is entitled to post-

conviction DNA testing. Id.

Without a basis to assert jurisdiction over a matter that is now moot, the trial

court does not have a ministerial duty to act on relator’s bills of exception and thus

has not failed to perform a ministerial act. See, e.g., In re Holland, No. 05-21-00435-

CV, 2021 WL 4189954, at *1 (Tex. App.—Dallas Sept. 15, 2021, orig. proceeding)

(mem. op.) (no showing of right to mandamus relief for failure to rule on pending

motion where trial court lacks jurisdiction to rule on motion).

Because relator’s petition does not comply with the rules of appellate

procedure and there is no showing he is entitled to relief, we deny the petition for

writ of mandamus.

211067f.p05 /Cory L. Carlyle// CORY L. CARLYLE JUSTICE

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