in Re Jonathan Jermaine Richard

• Court: Court of Appeals of Texas
• Decided: January 13, 2022
• Docket: 01-21-00717-CR
• Status: Published

Opinion

Opinion issued January 13, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00717-CR ——————————— IN RE JONATHAN JERMAINE RICHMOND, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Jonathan Jermaine Richmond, incarcerated and appearing pro se, has

filed a petition for writ of mandamus, in which he requests that this Court direct the

trial court to “hold an [e]xamining trial in [his] case before the return of an

indictment on [f]alse [a]llegations.”1

1 The underlying case is The State of Texas v. Jonathan Jermaine Richmond, Cause No. 1746272, in the 182nd District Court of Harris County, Texas, the Honorable Danilo Lacayo presiding. In his mandamus petition, relator alleges that “[o]n or about [November 26,

2021], [r]elator’s wife . . . and the complainant . . . talked with [r]elator’s defense

counsel . . . at which time, [c]omplainant . . . recanted her testimony made” to police,

stating that “relator did not commit any injury or harm to her.” Based on the

complainant’s alleged recanting of her testimony, relator argues that the trial court

has “a ministerial duty to order an examining trial and order the case to be

[d]ismissed.” An examining trial puts “the State to its burden of proving that

probable cause exists to believe the accused committed the offense charged against

him.” State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 425 (Tex. Crim. App. 1990).

However, according to relator’s mandamus petition, his court-appointed trial

counsel “did not request an examining trial to correct the [c]omplainant’s

testimony.”

We deny the petition for writ of mandamus.

First, we note that relator’s petition does not comply with the requirements

enumerated in the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(a)–

(h), (k); see also TEX. R. APP. P. 52.7. Among other things, the petition lacks an

appendix and a record. See TEX. R. APP. P. 52.3(k)(1) (requiring petition for writ of

mandamus be filed with appendix that contains “a certified or sworn copy of any

order complained of, or any other document showing the matter complained of”),

52.7(a) (requiring petition for writ of mandamus be filed with record containing “a

2 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” and “properly authenticated

transcript of any relevant testimony from any underlying proceeding”). We note that

relator’s petition includes an “Exhibit-A,” which is titled “Defendant’s Motion for

an Examining Trial Pursuant to Ineffective Assistance of Counsel.” While this

motion is dated December 16, 2021, the same day relator’s mandamus petition is

dated, relator’s motion does not include any file-stamp or other indication that it was

properly filed or otherwise presented to the trial court. In the absence of a sufficient

appendix and record, this Court cannot evaluate the merits of relator's

petition. See In re Cole, No. 01-20-00807-CR, 2021 WL 243894, at *1 (Tex.

App.—Houston [1st Dist.] Jan. 26, 2021, orig. proceeding) (mem. op., not

designated for publication); In re McCreary, No. 12-15-00067-CR, 2015 WL

1395783, at *1 (Tex. App.—Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not

designated for publication) (“Without an appendix and a record, we are unable to

determine that [r]elator is entitled to mandamus relief”).

Relator has further failed to establish that the trial court refused to rule on any

motion or request for the relief relator seeks in this Court. See Barnes v. State, 832

S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (denying

mandamus relief where relator did not ask for hearing on motions or take any action

to alert trial court to need to act); O’Connor v. First Court of Appeals, 837 S.W.3d

3 94, 97 (Tex. 1992) (to obtain mandamus relief, relator must show trial court had

legal duty to perform non-discriminatory act, relator made demand for performance,

and trial court refused). As noted above, while relator’s petition to this Court

includes a pro se motion for an examining trial, there is no indication that motion

was properly filed or presented to the trial court. Further, even assuming relator’s

motion was properly filed and presented to the trial court, the motion is dated

December 16, 2021, the same date as relator’s mandamus petition. See In re Chavez,

62 S.W.3d 225, 228–29 (Tex. App.—Amarillo 2001, orig. proceeding) (trial court

afforded “reasonable time” to perform ministerial duty of ruling on properly

presented motion)

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

All pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).