In Re: Neil Noble v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 12, 2023
• Docket: 05-23-00322-CV
• Status: Published

Opinion

DENIED and Opinion Filed April 12, 2023

S In the Court of Appeals Fifth District of Texas at Dallas No. 05-23-00322-CV

IN RE NEIL NOBLE, Relator

Original Proceeding from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F18-45998

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Carlyle Before the Court is relator’s April 6, 2023 petition for writ of mandamus. A

jury found relator guilty of stalking. Relator reached an agreement with the State,

and the trial court sentenced him to ten years’ imprisonment, probated for four years.

This Court recently affirmed his conviction, modifying the judgment. See Noble v.

State, 05-21-00326-CR, 2022 WL 17351908, at *15 (Tex. App.—Dallas Dec. 1,

2022, pet. ref’d) (mem. op.).

Relator contends the trial court has not ruled on a motion for judgment nunc

pro tunc and a motion to enter judgment for credit for time served that he filed in

January and February 2023, respectively. He asks this Court to compel the trial court

to reform the judgment to give him credit for time served. We deny the petition. 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). Relator’s petition, however, does not comply with the Texas Rules of

Appellate Procedure. A petition 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.” TEX. R.

APP. P. 52.3(j). Relator also bears the burden of providing the Court with a sufficient

record to show he is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding).

Here, relator has failed to provide the required certification. See TEX. R. APP.

P. 52.3(j). Also, although relator has included numerous documents in an appendix

to his petition, none of the documents are sworn or certified copies. See TEX. R. APP.

P. 52.3(k)(1) (appendix must contain “a certified or sworn copy of any order

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

52.7(a)(1) (relator must file with a petition “a 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”).

Even if these defects did not exist, we would deny the petition. While we have

jurisdiction to direct the trial court to exercise its discretion by ruling, we may not

tell the trial court how to rule on the pending motions. See In re Autrey, No. 05-22-

–2– 01009-CV, 2022 WL 5113123, at *1 (Tex. App.—Dallas Oct. 5, 2022, orig.

proceeding) (mem .op.); In re ReadyOne Indus., Inc., 463 S.W.3d 623, 624 (Tex.

App.—El Paso 2015, orig. proceeding).

To the extent relator’s petition could be construed as a request to compel the

trial court to rule, relator must show his motions were properly filed and that the trial

court (1) had a legal duty to rule on the motions, (2) was asked to rule on the motions,

and (3) failed or refused to do so within a reasonable time. See In re Turcios, No. 05-

21-01168-CV, No 05-21-01169-CV, 2022 WL 202985, at *1 (Tex. App.—Dallas Jan.

24, 2022, orig. proceeding) (mem. op.) (citing In re Keeter, 134 S.W.3d 250, 252

(Tex. App.—Waco 2003, orig. proceeding)). Here, assuming without deciding that

relator’s motions were properly filed in January and February 2023, we conclude

this proceeding is premature.

Accordingly, we deny relator’s petition for writ of mandamus.

/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE

230322F.P05

–3–