in Re: Jerome Johnson ( 2018 )

DENY; and Opinion Filed September 11, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01000-CV
IN RE JEROME JOHNSON, Relator
Original Proceeding from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F01-53637-JH
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Boatright
In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule
on a motion for judgment nunc pro tunc. To establish a 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). A trial court has a ministerial duty to rule upon a properly filed and timely presented
motion. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007) (orig. proceeding). To be properly filed and timely presented, a motion must be
presented to a trial court at a time when the court has authority to act on the motion. In re Hogg–
Bey, No. 05–15–01421–CV, 2015 WL 9591997, at *1–2 (Tex. App.—Dallas Dec. 30, 2015, orig.
proceeding) (mem. op.). A trial court has a reasonable time within which to consider a motion and
to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding).
As the party seeking relief, the relator has the burden of providing the Court with a
sufficient mandamus record to establish his right to mandamus relief. Lizcano v. Chatham, 416
S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v.
Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rules 52.3 and 52.7 require the
relator to provide “a certified or sworn copy” of certain documents, including any order
complained of, any other document showing the matter complained of, and every document that
is material to the relator’s claim for relief that was filed in any underlying proceeding. TEX. R.
APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Here, the mandamus record does not include any of those documents. Although relator has
included many items in the appendix to his petition, the appendix is not certified, the motion and
subsequent requests for rulings are not file-stamped, and no other proof of filing of the motion or
requests is included in the appendix. This record is insufficient to establish that the motion was
properly filed and timely presented and that the trial court was asked to rule but failed to do so
within a reasonable time. As such, relator has not established a violation of a ministerial duty and
is not entitled to mandamus relief. Because relator is not entitled to the relief sought, we deny his
petition for writ of mandamus. TEX. R. APP. P. 52.8(a).
/Jason Boatright/
JASON BOATRIGHT
JUSTICE
181000F.P05
–2–