In Re DeAndre J. Thibodeaux v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 16, 2023
• Docket: 09-23-00217-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00217-CR __________________

IN RE DEANDRE J. THIBODEAUX

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Original Proceeding Criminal District Court of Jefferson County, Texas Trial Cause No. F22-39935 __________________________________________________________________

MEMORANDUM OPINION

In a pro se petition for a writ of mandamus, Relator, DeAndre J. Thibodeaux,

asks this Court to compel the trial court to hold an examining trial. See Tex. Code

Crim. Proc. Ann. art. 16.01 (“The accused in any felony case shall have the right to

an examining trial before indictment in the county having jurisdiction of the

offense[.]”). We deny mandamus relief.1

1 Relator failed to certify that he served a copy of the mandamus petition on the Respondent and the Real Party in Interest. See Tex. R. App. P. 9.5. We use Rule 2, however, to look beyond these deficiencies to reach an expeditious result. See Tex. R. App. P. 2. 1 To be entitled to mandamus relief in a criminal case, a relator must show that

he has no adequate remedy at law to redress his alleged harm and he must show that

he seeks to compel a ministerial act, not involving a discretionary or judicial

decision. See In re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). “If a

party properly files a motion with the trial court in a criminal case, the court has a

ministerial duty to rule on the motion within a reasonable time after the motion has

been submitted to the court for a ruling or after the party has requested a ruling.” In

re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig.

proceeding). The mandamus record must show that the motion was filed and brought

to the attention of the trial court for a ruling, and the trial court failed to rule on the

motion within a reasonable time after the motion was submitted to the court for a

ruling or after the party requested a ruling. Id. The mandamus record must contain a

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

the matter complained of. See Tex. R. App P. 52.3(k)(1). A relator must certify that

he has reviewed the petition and concluded that every factual statement in the

petition is supported by competent evidence in the appendix or record. See Tex. R.

App. P. 52.3(j).

Relator claims he has been detained in custody without an examining trial

since his arrest on May 25, 2022. He fails to mention whether he has been indicted.

2 He fails to mention whether he is represented by counsel in the trial court. He fails

to show that he invoked his right to an examining trial at a proper time and in an

appropriate manner. He fails to describe his attempts to bring his request for an

examining trial to the attention of the trial court. He fails to support his petition with

an appendix. He cites section 132.001 of the Civil Practice and Remedies Code,

which authorizes a person to use an unsworn declaration in lieu of a sworn

declaration, certification, or affidavit, but his declaration is not in the form required

by section 132.002. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001. To be

effective as a substitute for an affidavit, an unsworn declaration must be made under

penalty of perjury so the State may prosecute the person who signs it for perjury if

the person makes a false statement in the unsworn declaration filed to support the

petition. See id.

Relator failed to establish a right to mandamus relief. Accordingly, we deny

the petition for a writ of mandamus. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on August 15, 2023 Opinion Delivered August 16, 2023 Do Not Publish

Before Golemon, C.J., Horton and Wright, JJ.