in Re: Ismael H. Padilla

• Court: Court of Appeals of Texas
• Decided: February 28, 2022
• Docket: 05-22-00124-CV
• Status: Published

Opinion

DENIED and Opinion Filed February 28, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00124-CV

IN RE ISMAEL H. PADILLA, Relator

Original Proceeding from the County Criminal Court No. 5 Dallas County, Texas Trial Court Cause No. M78-02585-F

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Garcia Opinion by Justice Garcia In this original proceeding, Ismael H. Padilla petitions the Court for a writ of

mandamus to compel the trial court to transmit findings to the court of criminal

appeals on a pending post-conviction application for writ of habeas corpus he alleges

he filed pursuant to Texas Code of Criminal Procedure article 11.07. We deny relief

on relator’s petition.

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). Relator’s petition does not contain a certification and thus 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).

Moreover, to establish a right to mandamus relief, the relator must show that

the trial court violated a ministerial duty and there is no adequate remedy at law. In

re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.

proceeding). 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). 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).

Relator’s petition is not supported by any record. Without a record of

documents to support his petitions, relator cannot show he is entitled to mandamus

relief. See Walker, 827 S.W.2d at 837; Butler, 270 S.W.3d at 759.

Finally, we note that even if relator had properly certified his petition and

provided authenticated documents to support his contentions, only the court of

criminal appeals has jurisdiction to order a trial court to issue findings on a pending

article 11.07 writ application. Padieu v. Court of Appeals of Tex., Fifth Dist., 392

–2– S.W.3d 115, 117–18 (Tex. Crim. App. 2013) (per curiam); see also In re Ward, No.

12-15-00142-CR, 2015 WL 3505189, at *1 (Tex App.—Tyler June 3, 2015, orig.

proceeding) (mem. op.) (not designated for publication).

Because relator has not shown he is entitled to relief, we deny the petition for

writ of mandamus.

/Dennise Garcia/ DENNISE GARCIA JUSTICE 220124F.P05

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