in Re: Robert B. Read, Jr.

• Court: Court of Appeals of Texas
• Decided: December 31, 2021
• Docket: 05-21-01014-CV
• Status: Published

Opinion

DENIED and Opinion Filed December 31, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01014-CV

IN RE ROBERT B. READ, JR., Relator

Original Proceeding from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-81170-06

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Goldstein Opinion by Justice Pedersen, III Robert B. Read, Jr. has filed a petition for a writ of mandamus to compel the

trial court to grant his motion seeking a time credit on his sentence. Concluding the

petition does not meet the requirements of rule of appellate procedure 52 and does

not show relator is entitled to mandamus relief, we deny the petition. Relator has

also filed a motion seeking permission to file his petition. Because such a motion is

unnecessary, we deny it as moot. See TEX. R. APP. P. 52.1.

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). The certification must state substantially what is written in rule 52.3(j). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig.

proceeding).

In this case, relator has filed an “Unsworn Declaration” stating that he does

“swear and affirm that all facts and information in this Motion for Writ of

Mandamus, are true and correc[t] to the best of my knowledge and belief.” Relator’s

unsworn declaration does not indicate that the statements in the petition are

supported by competent evidence in the appendix or record. Therefore, his

certification does not meet the requirement of rule 52.3(j). See id.

Additionally, relator’s petition is not accompanied by a sufficient record to

support his assertions. To obtain mandamus relief for failure to rule on a motion,

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. In re Prado,

522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.). Relator

bears the burden to provide the Court with a sufficient record to establish his right

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

To meet his evidentiary burden, rule 52.3(k)(1)(A) requires 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 relator to file with the petition “a

certified or sworn copy of every document that is material to the relator’s claim for

–2– relief that was filed in any underlying proceeding.” TEX. R. APP. P. 52.7(a)(1).

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

rules of appellate procedure. In re Foster, 503 S.W.3d 606, 607 (Tex. App.—

Houston [14th Dist.] 2016, orig. proceeding) (per curiam).

Relator’s petition is supported only by an uncertified and unsworn copy of the

judgment of conviction. There is no copy of the motion at issue, no indication relator

has presented the motion to the trial court for a ruling, no letters reminding the trial

court that the motion is pending, and no documents showing the status of relator’s

motion on the trial court’s docket.

Without a record to support his petition, relator cannot show he is entitled to

mandamus relief. See Butler, 270 S.W.3d at 759; Prado, 522 S.W.3d at 2; In re

Blakeney, 254 S.W.3d 659, 661–62 (Tex. App.—Texarkana 2008, orig. proceeding)

(no mandamus relief absent proof motion was filed, presented to the trial court with

a request for a ruling, and trial court given reasonable time to issue ruling).

In addition to requesting mandamus relief to compel the trial court to act on

his motion, relator’s petition further requests that the Court act directly to compel

the trial court to alter his time credit. We note that the same evidentiary deficiencies

that doom relator’s case with regard to compelling the trial court to act on his motion

are also present in requesting direct mandamus relief from this Court.

Moreover, assuming hypothetically the correctness of relator’s

representations, he has not shown he is entitled to mandamus relief. In his petition,

–3– relator states that he was arrested on July 12, 2005 and was released later that day

when he posted bond. He was brought to trial on March 9, 2009 and, according to

the copy of the judgment, convicted on March 13, 2009. The trial court’s judgment

credits relator for confinement on July 12, 2005 and for five additional days in

connection with his trial. Relator contends he should be entitled to an additional three

years, seven months, and twenty-eight days for the time he was out on bond because

he was in “constructive custody” while he was free on bond awaiting trial.

The court of criminal appeals has held that when a convicted person

challenges the accuracy of his pretrial time credit, a judgment nunc pro tunc—or a

writ of mandamus to the court of appeals if the trial court denies a motion for

judgment nunc pro tunc—is appropriate only if the convicted person’s right to a time

credit is “absolutely indisputable under the terms of Article 42.03, Section 2(a)(1).”

In re Brown, 343 S.W.3d 803, 804 (Tex. Crim. App. 2011) (per curiam).

Under article 42.03, section 2(a)(1), relator was entitled to credit for the time

he spent confined “in jail for the case” awaiting trial. See TEX. CODE CRIM. PROC.

ANN. art. 42.03, §2(a)(1); see also TEX. R. APP. P. 23.2 (requiring time credit for

time spent confined). By his own admission, relator was not “in jail” during the

disputed period between his arrest and posting of bond in 2005 and the time of trial

in 2009. Even with properly authenticated documents, nothing in the record shows

relator is absolutely indisputably entitled to three years, seven months, and twenty-

eight days of additional time credit as he alleges. See art. 42.03, §2(a)(1); Brown,

–4– 343 S.W.3d at 804; see also Ex parte Allen, 548 S.W.2d 905, 907 (Tex. Crim. App.

1977) (petitioner entitled to credit for time in jail pending appeal but not for time out

on bond).

Because relator’s petition is not properly certified, is not supported by a

sufficient record, and does not absolutely indisputably show he is entitled to

additional time credit on his sentence, we deny mandamus relief. See Brown, 343

S.W.3d at 804; Butler, 270 S.W.3d at 758–59; Prado, 522 S.W.3d at 2.

/Bill Pedersen, III// 211014f.p05 BILL PEDERSEN, III JUSTICE

–5–