in Re Aubrey Allen

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00203-CR __________________

IN RE AUBREY ALLEN __________________________________________________________________

Original Proceeding Criminal District Court of Jefferson County, Texas Trial Cause No. 59951 __________________________________________________________________

MEMORANDUM OPINION

Aubrey Allen filed a petition for a writ of mandamus through which he seeks

to compel the judge presiding in the Criminal District Court of Jefferson County to

consider a motion for judgment nunc pro tunc that Allen claims he filed more than

thirty days before he filed his mandamus petition with this Court. The numerous

procedural problems with the petition include no service on the trial court judge as

the respondent and the State as the real-party-in-interest, as required by the Rules of

Appellate Procedure, a failure to include the required contents of the petition under

appropriate headings, and a defective certification. See Tex. R. App. P. 9.5; 52.2;

1 52.3(a)-(j). However, on our own initiative, we suspend those rules of operation and

proceed to a timely disposition of the petition. See Tex. R. App. P. 2.

A relator must demonstrate that he is indisputably entitled to mandamus

relief. In re Brown, 343 S.W.3d 803, 805 (Tex. Crim. App. 2011) (orig.

proceeding). To obtain mandamus relief for the trial court’s failure to rule on a

motion for judgment nunc pro tunc, a relator must establish that (1) the motion was

properly filed and has been pending for a reasonable time; (2) the relator requested

a ruling on the motion; and (3) the trial court refused to rule. In re Sarkissian, 243

S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding) (mem. op.). Merely

filing a motion with the trial court clerk does not constitute a request that the trial

court rule on the motion. Id.

A mandamus petition must include an appendix that contains a certified or

sworn copy of the documents showing the complained of matter. See Tex. R. App.

P. 52.3(k)(1)(A). The appendix to Allen’s petition contains an I-60 inter-office

communication concerning the calculation of Allen’s release date by the Department

of Criminal Justice and a letter from the Board of Pardons and Paroles. Allen failed

to include in his appendix a copy of the motion he claims the trial court failed to

timely consider and any documents that would demonstrate that a motion is properly

before the Criminal District Court of Jefferson County, Texas, and that he brought

the motion to the attention of the trial court. See Sarkissian, 243 S.W.3d at 861.

2 Additionally, Allen’s mandamus petition fails to describe a clerical error in the

judgment signed in 1991 in Trial Court Case Number 59951, and he fails to identify

any other criminal case against Allen filed in the Criminal District Court of Jefferson

County. We deny the petition for a writ of mandamus.

PETITION DENIED.

PER CURIAM

Submitted on September 8, 2020 Opinion Delivered September 9, 2020 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.