In Re: Roman J. Cantu v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 16, 2023
• Docket: 05-23-01131-CV
• Status: Published

Opinion

DENIED and Opinion Filed November 16, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01131-CV

IN RE ROMAN J. CANTU, Relator

Original Proceeding from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1970908

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Garcia Before the Court is relator’s November 9, 2023 petition for writ of mandamus.

Relator was adjudicated guilty of aggravated assault with a deadly weapon and

sentenced to five years’ confinement. Relator did not appeal the judgment. In his

petition, relator argues the trial court has failed to rule on a nunc pro tunc motion

that he purportedly filed on May 22, 2023, wherein he requested credit for 139 days

of time served. We construe relator’s petition as asking this Court to compel the trial

court to reform the judgment to give him credit for time served.

To establish the 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 in numerous respects. See TEX. R. APP. P. 52.3(a)–(c), (d)(1)–

(3), (f)–(h), (j), (k)(1)(A), 52.7(a)(1). For example, 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). A relator also bears the burden

of providing the Court with a record sufficient 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. TEX. R. APP. P.

52.3(j). Although relator attached some documents to his petition, none of the

documents are sworn or certified copies. See TEX. R. APP. P. 52.3(k)(1)(A) (stating

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) (stating a relator

must file with the 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”). Accordingly, because relator’s petition does not meet the

requirements of the Texas Rules of Appellate Procedure for consideration of

mandamus relief, we deny relator’s petition. In re Jones, No. 05-23-00492-CV, No.

05-23-00493, 2023 WL 4101440, at *1 (Tex. App.—Dallas June 21, 2023, orig.

proceeding) (mem. op.).

–2– 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 a pending motion. See In re Noble, No. 05-23-

00322-CV, 2023 WL 2910619, at *1 (Tex. App.—Dallas Apr. 12, 2023, orig.

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

/Dennise Garcia/ DENNISE GARCIA 231131F.P05 JUSTICE

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