In Re: Joshua Skinner v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 11, 2023
• Docket: 05-23-00930-CV
• Status: Published

Opinion

DENIED and Opinion Filed October 11, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00930-CV

IN RE JOSHUA SKINNER, Relator

Original Proceeding from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F1520176

MEMORANDUM OPINION Before Justices Reichek, Smith, and Kennedy Opinion by Justice Kennedy Before the Court is relator’s September 21, 2023 petition for writ of

mandamus. This Court previously affirmed, as modified, relator’s conviction for

aggravated sexual assault of a child under the age of fourteen. See Skinner v. State,

No. 05-17-00153-CR, 2018 WL 3545023, at *1 (Tex. App.—Dallas July 24, 2018,

pet. ref’d) (mem. op., not designated for publication). In his petition, relator contends

the trial court has not ruled on his motion for post-conviction DNA testing.

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

the rules of appellate procedure. In re Read, No. 05-21-01014-CV, 2021 WL

6194726, at *1 (Tex. App.—Dallas Dec. 31, 2021, orig. proceeding) (mem. op.).

Relator’s petition, however, does not comply with the Texas Rules of Appellate Procedure in several respects. See TEX. R. APP. P. 52.1, 52.3(a)–(c), (d)(1)–(3), (f)–

(h), (j), (k)(1)(A), 52.7(a)(1). For instance, a petition seeking mandamus relief must

include 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.” Relator included a signed certification

wherein he stated “that the above and foregoing is true and correct to the best of [his]

knowledge and belief.” But this certification does not satisfy the requirements of

rule 52.3(j). See TEX. R. APP. P. 52.3(j); Read, 2021 WL 6194726, at *1 (“The

certification must state substantially what is written in rule 52.3(j).”).

Additionally, a relator must file a “certified or sworn copy of any order

complained of, or any other document showing the matter complained of.” TEX. R.

APP. P. 52.3(k)(1). And a relator is required 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). Although relator

included a certified copy of a notification, none of the other documents relator

included in his appendix is a sworn or certified copy. It is relator’s burden to provide

a record sufficient to show his entitlement to mandamus relief. Walker v. Packer,

827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Without a certified petition and

authenticated record, relator has not carried his burden. See In re Kirk, No. 05-22-

00363-CV, No. 05-22-00364-CV, No. 05-22-00365-CV, 2022 WL 1514677, at *1

(Tex. App.—Dallas May 13, 2022, orig. proceeding) (mem. op.).

–2– Additionally, to obtain mandamus relief based on a failure to rule, a relator

must show the trial court had a legal duty to rule on the motion, relator requested a

ruling, and the trial court failed or refused to issue a ruling. Read, 2021 WL 6194726,

at *1 (citing In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig.

proceeding) (mem. op.)). Relator, however, has not shown that he has brought his

purported motion to the trial court’s attention or reminded the trial court that his

purported motion is still pending. See id. Without such a showing, relator cannot

show he is entitled to mandamus relief. Id.

Accordingly, we deny the petition.

Relator also filed a Motion for Leave to File an Application for Writ of

Mandamus and Motion to Suspend a Rule. We deny both motions as moot. We note

that it is not necessary to request leave to file a petition for writ of mandamus. See

TEX. R. APP. P. 52.1; In re Brager, No. 05-20-00544-CV, 2020 WL 3055901, at *1

(Tex. App.—Dallas June 9, 2020, orig. proceeding) (mem. op.).

/Nancy Kennedy/ NANCY KENNEDY JUSTICE 230930F.P05

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