in Re: Jerome Johnson

Opinion

DENY; and Opinion Filed September 11, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01000-CV

IN RE JEROME JOHNSON, Relator

Original Proceeding from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F01-53637-JH

MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Boatright In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule

on a motion for judgment nunc pro tunc. To establish a right to mandamus relief in a criminal

case, 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). A trial court has a ministerial duty to rule upon a properly filed and timely presented

motion. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.

Crim. App. 2007) (orig. proceeding). To be properly filed and timely presented, a motion must be

presented to a trial court at a time when the court has authority to act on the motion. In re Hogg–

Bey, No. 05–15–01421–CV, 2015 WL 9591997, at *1–2 (Tex. App.—Dallas Dec. 30, 2015, orig.

proceeding) (mem. op.). A trial court has a reasonable time within which to consider a motion and

to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, 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. Lizcano v. Chatham, 416

S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v.

Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rules 52.3 and 52.7 require the

relator to provide “a certified or sworn copy” of certain documents, including any order

complained of, any other document showing the matter complained of, and every document that

is material to the relator’s claim for relief that was filed in any underlying proceeding. TEX. R.

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

Here, the mandamus record does not include any of those documents. Although relator has

included many items in the appendix to his petition, the appendix is not certified, the motion and

subsequent requests for rulings are not file-stamped, and no other proof of filing of the motion or

requests is included in the appendix. This record is insufficient to establish that the motion was

properly filed and timely presented and that the trial court was asked to rule but failed to do so

within a reasonable time. As such, relator has not established a violation of a ministerial duty and

is not entitled to mandamus relief. Because relator is not entitled to the relief sought, we deny his

petition for writ of mandamus. TEX. R. APP. P. 52.8(a).

/Jason Boatright/ JASON BOATRIGHT JUSTICE

181000F.P05

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