In Re: Richard Lee Cortez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 7, 2023
• Docket: 05-23-00865-CV
• Status: Published

Opinion

DENIED and Opinion Filed September 7, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00864-CV No. 05-23-00865-CV

IN RE RICHARD LEE CORTEZ, Relator

Original Proceeding from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F17-33286-T, F17-33287-T

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Garcia

In his petitions for writ of mandamus, relator asks us to compel the trial court

to rule on a motion for new trial that he claims he filed on April 10, 2023.

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). When the requested relief is to compel a trial court to rule on a motion,

relator must show (1) the trial court had a legal duty to rule on the motion, (2) relator

requested a ruling, and (3) the trial court failed or refused to do so within a reasonable

time. See In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.). It is relator’s burden to provide a record sufficient to establish his right

to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.

proceeding); see also TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).

Relator’s petitions do not comply with the Texas Rules of Appellate

Procedure in numerous respects. See, e.g., TEX. R. APP. P. 52.3(a)–(h), 52.3(j)–(k),

52.7(a). 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.” TEX. R. APP. P. 52.3(j). Relator failed to certify his petitions.

Additionally, Rule 52.3(k)(1)(A) requires a 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 his 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 failed to include

with his petitions any documents material to his claim for relief.

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

/Dennise Garcia/ DENNISE GARCIA JUSTICE 230864F.P05

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