in Re Benny Cole, Relator

• Court: Court of Appeals of Texas
• Decided: August 11, 2021
• Docket: 07-21-00159-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00159-CR

IN RE BENNIE L. COLE, RELATOR

OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

August 11, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Relator, Bennie L. Cole, petitions for a writ of mandamus directing an unnamed

judge of the 137th Judicial District, Lubbock County, to act upon a purported motion

concerning DNA testing. We deny the petition.

First, Texas Rule of Appellate Procedure 52.3 identifies the requirements for a

petition for writ of mandamus filed in this Court. Rule 52.3(k)(1)(A) provides that the

appendix to a petition for writ of mandamus must contain a certified or sworn copy of any

order complained of or any other document showing the matter about which he complains.

TEX. R. APP. P. 52.3(k)(1)(A). No such appendix accompanied Cole’s petition. So, no

purported motion for DNA testing appears in the record before us. More importantly, a

copy of such motion would be a document within the scope of the matter about which he

complains for purposes of Rule 52.3(k)(1)(A). Thus, Cole failed to comply with that rule. 1 Also lacking is compliance with other aspects of Rule 52. For instance, he did not

certify, as required by Rule 52.3(j), that he reviewed the petition and concluded that every

factual statement in it is supported by competent evidence included in an appendix or

record. TEX. R. APP. P. 52.3(j). And, that Cole may be acting pro se does not relieve him

from complying with the rules of procedure. In re Martinez, No. 07-14-00343-CV, 2014

Tex. App. LEXIS 11058, at *2 (Tex. App.—Amarillo Oct. 6, 2014, orig. proceeding) (per

curiam) (mem. op.); Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.—Amarillo 1998,

pet. denied).

We further note that nothing of record indicates that the purported motion was

brought to the attention of the trial court or that the trial court knew of it. This omission is

of import because a trial court cannot be found to have abused its discretion until the

complainant established that it had been asked to perform a non-discretionary act. See

O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In

re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). To the

extent that Cole complains of the trial court’s failure to act on his supposed motion,

application of the foregoing rule would necessarily require him to illustrate that the trial

court was aware of the motion. See In re Chavez, 62 S.W.3d at 228. One can hardly be

faulted for doing nothing if he were unaware of the need to act. And, though Cole does

insinuate in his petition that he filed the motion and ensuing notices about it with the

district clerk, that alone does not illustrate that the trial court knew of them. See id. (“If

filing occurred with the district clerk, we know of no rule which imputes the clerk’s

knowledge to the trial court. Thus, it would be incumbent upon appellant to illustrate that

the clerk informed the trial court of the motion or that the trial court otherwise obtained

knowledge of it.”); see also In re Boyd, No. 07-19-00279-CV, 2019 Tex. App. LEXIS 6958,

2 at *4 (Tex. App.—Amarillo Aug. 8, 2019, orig. proceeding) (per curiam) (mem. op.) (stating

that a “clerk’s knowledge of a filing is not imputed to the trial court” and “[m]erely alleging

that something was filed with or mailed to the district clerk does not satisfy that

requirement”).

For the foregoing reasons, we deny Cole’s petition for writ of mandamus.

Per Curiam