In Re: Shedrick Thornton v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 14, 2023
• Docket: 05-23-01119-CV
• Status: Published

Opinion

DENIED and Opinion Filed November 14, 2023

In the Court of Appeals Fifth District of Texas at Dallas No. 05-23-01119-CV

IN RE SHEDRICK THORNTON, Relator

Original Proceeding from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F1970256

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Carlyle Before the Court is relator’s November 7, 2023 petition for writ of mandamus.

Relator argues the trial court has not ruled on a motion for judgment nunc pro tunc

that relator contends he filed on September 28, 2023. 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 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 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, however, relator attached only one document to his petition. That

document purportedly shows relator’s time served, but it is neither a sworn nor

certified copy. See TEX. R. APP. P. 52.3(k)(1)(A) (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 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”). Relator did not provide, among other things, a

record showing he filed the purported motion in the trial court, requested a ruling,

or that the trial court has failed or refused to rule on that motion. Accordingly, we

conclude relator has failed to meet his burden to provide a record sufficient to

support his request for mandamus relief.

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 issuing ruling after a

reasonable amount of time has passed, we may not tell the trial court how to rule on

a pending motion. In re Noble, No. 05-23-00322-CV, 2023 WL 2910619, at *1 (Tex.

App.—Dallas Apr. 12, 2023, orig. proceeding) (mem. op.).

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

trial court to rule, relator must show his motion was properly filed, that the trial court

had a legal duty to rule on the motion, was asked to rule on the motion, and failed or

–2– refused to do so within a reasonable time. Id. Here, assuming without deciding that

relator’s purported motion was properly filed on September 28, 2023, we conclude

this proceeding is premature.

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

/Cory L. Carlyle// 231119f.p05 CORY L. CARLYLE JUSTICE

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