In Re: Eric Wayne Bennett v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 15, 2023
• Docket: 05-23-00302-CV
• Status: Published

Opinion

DENIED and Opinion Filed May 15, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00302-CV No. 05-23-00304-CV No. 05-23-00305-CV IN RE ERIC WAYNE BENNETT, Relator

Original Proceedings from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F01-59108-NM, F01-58893-LM & F01-76112-NM

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Breedlove Opinion by Justice Breedlove In these original proceedings, Eric Wayne Bennett petitions the Court for a

writ of mandamus to compel the trial court to rule on his motion for leave to file a

successive post-conviction application for writ of habeas corpus which he alleges he

filed on May 11, 2022. Relator has also filed a motion for leave to file a petition for

writ of mandamus. Because relator does not need to request permission to file his

petition, we deny as moot his motion for leave. See TEX. R. APP. P. 52.1.

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) (mem. op.). As the party seeking

relief, the relator has the burden of providing the Court with a sufficient mandamus

record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833,

837 (Tex. 1992) (orig. proceeding). Relator has not met his burden.

Relator’s petition is deficient under the rules of appellate procedure. A

petition seeking mandamus relief must contain a certification stating that the relator

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

is supported by competent evidence included in the appendix or record.” TEX. R.

APP. P. 52.3(j). Instead of a proper certification, relator’s petition bears an “Affidavit

of Truth” stating relator does “certify that the foregoing is true and correct to the best

of my knowledge, information, and belief.” Thus, relator’s certification does not

comply with rule 52.3(j). See id.; In re Butler, 270 S.W.3d 757, 758 (Tex. App.—

Dallas 2008, orig. proceeding).

Additionally, there are problems with relator’s supporting record. Rule

52.3(k)(1)(A) requires the relator to file an appendix with his petition that contains

“a certified or sworn copy of any order complained of, or any other document

showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule 52.7(a)(1)

requires the relator to file with the petition “a certified or sworn copy of every

document that is material to the relator’s claim for relief that was filed in any

underlying proceeding.” TEX. R. APP. P. 52.7(a)(1).

–2– Relator has attached to his petition a copy of his motion for leave, but the copy

of the motion is not certified or sworn and thus not properly authenticated under

rules 52.3 and 52.7. Documents become sworn copies when they are attached to an

affidavit or to an unsworn declaration conforming to section 132.001 of the Texas

Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §

132.001; Butler, 270 S.W.3d at 759; In re Long, 607 S.W.3d 443, 445, (Tex. App.—

Texarkana 2020, orig. proceeding); In re Hughes, 607 S.W.3d 136, 138 n.2 (Tex.

App.—Houston [14th Dist.] 2020, orig. proceeding). The affidavit or unsworn

declaration must affirmatively show the affiant or declarant has personal knowledge

of the documents and the statements about the documents must be direct and

unequivocal such that perjury can be assigned to them. See Butler, 270 S.W.3d at

759.

An unsworn declaration filed by an inmate meets the requirements of rule 52

if it bears the inmate’s signature; states under penalty of perjury that the inmate

declarant has personal knowledge that the copies of the documents in the appendix

are true and correct copies of the originals; and contains the information set forth in

section 132.001, which includes the inmate’s name, date of birth, inmate identifying

number, prison unit, and the city, county, state and zip code for the prison unit. See

Hughes, 607 S.W.3d at 138 n.2.

Even if relator had filed an authenticated copy of his motion, his record is

incomplete. Relator has not filed any evidence showing that he brought the motion

–3– to the trial court’s attention or reminded the trial court by letter that the motion is

pending. See In re Rangel, 570 S.W.3d 968, 969 (Tex. App.—Waco 2019, orig.

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

proceeding); see also In re Read, No. 05-21-01014-CV, 2021 WL 6194726, at *1

(Tex. App.—Dallas Dec. 31, 2021, orig. proceeding) (mem. op.). Merely filing the

motion with the trial court clerk does not show the trial court is aware of the motion

and the need for a ruling. See Chavez, 62 S.W.3d at 228; In re Hearn, 137 S.W.3d

681, 685 (Tex. App.—San Antonio 2004, orig. proceeding). Without such a

showing, relator cannot demonstrate he is entitled to mandamus relief against the

trial court for failing to rule on a pending motion. See Prado, 522 S.W.3d at 2.

We deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8.

/Maricela Breedlove/ 230302f.p05 MARICELA BREEDLOVE 230304f.p05 JUSTICE 230305f.p05

–4–