in Re: Roger Allen Fox

• Court: Court of Appeals of Texas
• Decided: November 12, 2021
• Docket: 05-21-00775-CV
• Status: Published

Opinion

DENIED and Opinion Filed November 12, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00774-CV No. 05-21-00775-CV

IN RE ROGER ALLEN FOX, Relator

Original Proceedings from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause Nos. F21-52968-IH & F21-52969-VH

MEMORANDUM OPINION Before Justices Schenck, Nowell, and Garcia Opinion by Justice Nowell Roger Allen Fox has filed a petition for writ of mandamus contending the trial

court has failed to act on his pro se application for writ of habeas corpus requesting

a reduction in his $100,000 bail on two pending criminal cases. Relator petitions the

Court to reduce his bond to $15,000 on each case. Concluding the petition does not

meet the requirements of rule of appellate procedure 52, we deny relief without

prejudice to filing a new petition that conforms to rule 52.

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 “Inmate Declaration” stating that he does

“declare under penalty of perjury the above and forgoing is true and correct to the

best of my personal knowledge.” Relator’s declaration does not indicate that the

statements in the petition are supported by competent evidence in the appendix or

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

Moreover, the only document relator does provide, a file-stamped copy of an

application for writ of habeas corpus, is not authenticated as the appellate rules

require and is, by itself, insufficient to show he is entitled to mandamus relief.

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.

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

Because relator’s sole supporting document is neither a certified copy nor a

sworn copy, it does not comply with the rules of appellate procedure. See Butler,

–2– 270 S.W.3d at 759. 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).

Furthermore, even if relator’s copy of the habeas application was

authenticated properly, it is insufficient by itself to show he is entitled to mandamus

relief. To obtain mandamus relief compelling a trial court to rule on his application,

relator must show (1) the trial court had a legal duty to rule on the application, (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.); Foster, 506 S.W.3d at 607.

Although relator contends in his petition that the district clerk presented the

application to the trial court, nothing in the record supports his assertion. Even if

relator provided sufficient proof that his application was filed, proof of filing does

not constitute proof that the matter was presented to the trial court with a request for

a ruling. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008,

orig. proceeding); see also Foster, 506 S.W.3d at 607 (denying mandamus relief on

ground relator did not file record showing habeas application had been filed and

presented to trial court judge).

Additionally. even if relator proved he presented the motion for a ruling, the

file stamp on relator’s application reflects he filed it on August 2, 2021 and he signed

his petition for writ of mandamus on August 31, 2021. There is no showing in the

–3– record that the trial court had a reasonable opportunity to issue a ruling before relator

sought mandamus relief. See In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San

Antonio 2003, orig. proceeding) (per curiam) (mandamus not available until trial

court has had reasonable opportunity to issue ruling); In re Chavez, 62 S.W.3d 225,

228–29 (Tex. App.—Amarillo 2001, orig. proceeding) (relator bears burden to show

trial court has had reasonable opportunity to rule on properly filed motion).

On the record presented, relator cannot show that he filed the habeas

application, requested a ruling, reminded the trial court that the application was

pending, or that the trial court refused to rule on the application within a reasonable

time. Thus, relator cannot show he is entitled to mandamus relief. See Prado, 522

S.W.3d at 2; Butler, 270 S.W.3d at 759; Foster, 506 S.W.3d at 607; Molina, 94

S.W.3d at 886.

We deny the petition for writ of mandamus without prejudice to filing a new

petition that corrects the deficiencies described in this opinion.1

210774f.p05 /Erin A. Nowell// 210775f.p05 ERIN A. NOWELL JUSTICE

1 Although not apparent on the record before us, there is an additional reason relator is not eligible for mandamus relief. The trial court’s online docket sheet shows relator is represented by counsel. A criminal defendant is not entitled to hybrid representation, and the trial court does not have a ministerial duty to rule on pro se motions filed by a defendant who is represented by counsel. See, e.g., In re Scott, No. 01-20- 00793-CR, 2020 WL 7062319, at *1 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, orig. proceeding) (mem. op., not designated for publication). –4–