In Re: Emmy Backusy v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 25, 2024
• Docket: 05-24-00263-CV
• Status: Published

Opinion

DENIED and Opinion Filed March 25, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00263-CV

IN RE EMMY BACKUSY, Relator

Original Proceeding from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1654232

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Miskel Opinion by Justice Miskel A jury convicted relator of aggravated sexual assault of a child younger than

fourteen years of age. Backusy v. State, No. 05-17-01288-CR, 2018 WL 5730166, at

*1 (Tex. App.—Dallas Nov. 2, 2018, pet. ref’d) (mem. op., not designated for

publication). In 2018, we modified the judgment and affirmed it as modified on

direct appeal. Id. at *3–4.

Now before the Court is relator’s March 7, 2024 petition for writ of

mandamus. Relator asks this Court to compel one of his trial attorneys to surrender

all papers and documents he received in the case along with his “attorney investigation findings” so relator may prepare a post-conviction application for writ

of habeas corpus.

Relator’s status as an inmate does not relieve him of his duty to comply with

the rules of appellate procedure. In re Skinner, No. 05-23-00930-CV, 2023 WL

6618295, at *1 (Tex. App.—Dallas Oct. 11, 2023, orig. proceeding) (mem. op.).

Relator’s petition, however, does not meet the requirements of the Texas Rules of

Appellate Procedure for consideration of mandamus relief. See In re Backusy,

No. 05-23-00674-CV, 2023 WL 4540278, at *1 (Tex. App.—Dallas July 14, 2023,

orig. proceeding) (mem. op.).

For example, it is relator’s burden to provide the Court with a sufficient record

to show his entitlement to mandamus relief. Skinner, 2023 WL 6618295, at *1; see

also TEX. R. APP. P. 52.3(k)(1)(A) (requiring a relator to file “a certified or sworn

copy of any order complained of, or any other document showing the matter

complained of”); TEX. R. APP. P. 52.7(a)(1) (requiring a relator to file “a certified or

sworn copy of every document that is material to the relator’s claim for relief and

that was filed in any underlying proceeding”). Relator, however, filed no record or

appendix to support his petition.

Relator also failed to certify he has reviewed the petition and concluded that

every factual statement is supported by competent evidence included in the appendix

or record. TEX. R. APP. P. 52.3(j). Relator signed a verification wherein he stated that

the “foregoing writ application is true and correct,” but this verification does not

–2– satisfy the requirements of rule 52.3(j). In re Skinner, No. 05-23-01077-CV, 2023

WL 8230683, at *1 (Tex. App.—Dallas Nov. 28, 2023, orig. proceeding) (mem.

op.). Without a certified petition and authenticated record, relator has failed to carry

his burden to provide a sufficient record. Skinner, 2023 WL 6618295, at *1.

Further, relator’s petition does not include a “clear and concise argument for

the contentions made, with appropriate citations to authorities and to the appendix

or record.” TEX. R. APP. P. 52.3(h). The petition is also styled incorrectly, see TEX.

R. APP. P. 52.1 (stating a petition must be captioned, “In re [name of relator]”), and

it is missing the following: a list identifying the parties and counsel, a table of

contents, an index of authorities, a statement of the case, a statement of jurisdiction,

a statement of the issues presented, and a statement of facts supported by citations

to competent evidence included in an appendix or record. TEX. R. APP. P. 52.3(a)–

(c), (d)(1)–(3), (e)–(g).

Accordingly, we deny relator’s petition for writ of mandamus.

/Emily Miskel/ 240263f.p05 EMILY MISKEL JUSTICE

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