In Re Johnifer Ray Mumphrey v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00042-CR
IN RE JOHNIFER RAY MUMPHREY
Original Mandamus Proceeding
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
Johnifer Ray Mumphrey has filed a pro se petition for a writ of mandamus asking this
Court to compel Judge Alfonso Charles of the 124th Judicial District Court of Gregg County,
Texas, to appoint Mumphrey counsel because he “is indigent and wishes to submit a motion” for
forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. We
deny Mumphrey’s petition for three reasons, including that he has failed to comply with the
Texas Rules of Appellate Procedure.
First, under the appellate rules governing mandamus proceedings, “[t]he person filing the
petition must certify that he . . . 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 mandamus petition failed to contain a certification that each of
Mumphrey’s factual statements was supported by competent evidence included in the appendix
or record, as required by Rule 52.3(j).
Second, Mumphrey claims that he has mailed several letters to the trial court seeking
appointment of counsel but has received no response. Although he attaches copies of the letters
allegedly sent to the trial court, Rule 52.7(a)(1) states that 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.” TEX. R. APP. P. 52.7(a)(1) (emphasis added).
Also, Rule 52.3(k)(1)(A) states, “The appendix must contain . . . a certified or sworn copy of any
order complained of, or any other document showing the matter complained of.” TEX. R. APP. P.
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52.3(k)(1)(A). The documents attached to Mumphrey’s petition do not appear to have been filed
in the underlying proceeding and are neither certified nor sworn.
Third, Mumphrey has the burden to properly request and show his entitlement to
mandamus relief. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.]
1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must
show himself entitled to the extraordinary relief he seeks.”). To do so, he must show that “he has
no adequate remedy at law to redress his alleged harm” and “that what he seeks to compel is a
ministerial act, not involving a discretionary or judicial decision.” State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)
(orig. proceeding). “[C]onsideration of a motion that is properly filed and before the court is [a]
ministerial” act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig.
proceeding); see In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig.
proceeding). However, before mandamus may issue, the relator must show that the trial court
had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act.
In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). The mere
filing of a motion does not impose a ministerial duty on the trial court to appoint counsel. See
Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011) (“An indigent convicted
person intending to file a motion for post-conviction DNA testing now has a limited right to
appointed counsel.” (Emphasis added)). Here, though, Mumphrey has not shown that his
motion was properly presented to the trial court. See In re Blakeney, 254 S.W.3d 659, 662 (Tex.
App.—Texarkana 2008, orig. proceeding). As a result, because nothing shows that the trial court
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has seen Mumphrey’s requests, Mumphrey has failed to demonstrate that the trial court had a
legal duty to perform a ministerial act.
“‘Because the record in a mandamus proceeding is assembled by the parties,’ we must
‘strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the
mandamus record.” In re Long, 607 S.W.3d 443, 445 (Tex. App.—Texarkana 2020, orig.
proceeding) (alteration in original) (quoting In re Smith, No. 05-19-00268-CV, 2019 WL
1305970, at *1 (Tex. App.—Dallas Mar. 22, 2019, orig. proceeding) (mem. op.). For the
foregoing reasons, we conclude that Mumphrey has failed to comply with the Texas Rules of
Appellate Procedure and has not met his burden to provide a record sufficient to show himself
entitled to mandamus relief.
We deny Mumphrey’s petition for a writ of mandamus.
Jeff Rambin
Justice
Date Submitted: March 6, 2023
Date Decided: March 7, 2023
Do Not Publish
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