In Re: Dennis Jerome Pierce v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 29, 2023
• Docket: 05-23-00136-CV
• Status: Published

Opinion

DENIED and Opinion Filed March 29, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00136-CV

IN RE DENNIS JEROME PIERCE, Relator

Original Proceeding from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F02-24969-Q

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Kennedy Opinion by Justice Kennedy In this original proceeding, Dennis Jerome Pierce has filed a petition for writ

of mandamus seeking to compel the trial court to rule on a “Request for Judgment

of Nunc Pro Tunc to Properly Reflect Court Ruling and Correct an Illegal Sentence”

he allegedly filed on September 29, 2022.

Relator’s petition is improperly certified with an unsworn declaration

declaring “under penalty of perjury that the foregoing document is true and correct

to the best of my knowledge.” See TEX. R. APP. P. 52.3(j) (requiring relator to certify

that he has reviewed the petition and concluded that all factual statements are

supported by competent evidence in appendix or record). Additionally, relator’s petition is not supported by an adequate record. To

obtain mandamus relief for a trial court’s failure to rule on a motion, the relator must

show that the trial court (1) had a legal duty to rule on the motion; (2) was asked to

rule on the motion; and (3) failed to do so. In re Prado, 522 S.W.3d 1, 2 (Tex. App.—

Dallas 2017, orig. proceeding). 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). The record must contain certified

or sworn copies of all relevant orders and material documents that show the matter

complained of or that were filed in the underlying proceeding. See TEX. R. APP. P.

52.3(k)(1)(A), 52.7(a)(1).

Relator’s record consists of unsworn, uncertified copies of a page from the

reporter’s record of relator’s 2013 adjudication hearing, the judgment adjudicating

relator’s guilt, a certified mail receipt showing the district clerk received something

from relator on September 29, 2022, and a printout of relator’s prison time credit.

There is no copy of the motion for judgment nunc pro tunc at issue nor is there

anything that would establish the motion has been filed, presented to the trial court,

and the trial court has failed to rule on it.

Without a properly certified petition supported by a record of certified or

sworn copies of material documents, relator cannot show he is entitled to mandamus

relief. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a); Prado, 522 S.W.3d at 2; In re

Butler, 270 S.W.3d 757, 758–59 (Tex. App.—Dallas 2008, orig. proceeding).

–2– Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

/Nancy Kennedy/ NANCY KENNEDY JUSTICE

230136F.P05

–3–