in Re Joseph Wayne Hunter ( 2020 )

DENIED and Opinion Filed March 4, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01537-CV
IN RE JOSEPH WAYNE HUNTER, Relator
Original Proceeding from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F13-56295-R
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Evans
Opinion by Justice Reichek
In this original proceeding, Joseph Wayne Hunter has filed a petition for
writ of mandamus to compel the Dallas County District Attorney and the trial court
to act upon his motion for forensic DNA testing and appointment of counsel he
alleges he filed on May 20, 2019. Relator further alleges the Dallas County District
Clerk has not responded to his request for a file marked copy of his motion. We
deny relief.
This Court does not have jurisdiction to issue writs of mandamus against a
district attorney or a district clerk unless it is necessary to enforce our own
jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a), (b) (authorizing court of
appeals to issue writs of mandamus against district and county judges within
appellate court’s geographic jurisdiction or when necessary to enforce appellate
court’s jurisdiction); In re Shugart, 528 S.W.3d 794, 796 (Tex. App.—Texarkana
2017, orig. proceeding). Relator is not complaining about actions in an appeal
pending in this Court and, therefore, we have no jurisdiction to act against the district
attorney or the district clerk. Shugart, 528 S.W.3d at 796. Accordingly, we dismiss
relator’s petition for writ of mandamus to the extent it requests mandamus relief
against the Dallas County District Attorney and the Dallas County District Clerk.
Turning to relator’s complaint against the trial court judge, to establish a right
to mandamus relief, 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). To show his entitlement to
mandamus relief compelling a trial court to rule on a motion, relator must show (1)
the trial court had a legal duty to rule on the motion because it was properly filed
and timely presented, (2) relator requested a ruling on the motion, and (3) the trial
court failed or refused to rule on the motion within a reasonable period of time. See
In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding); In re
Carter, No. 05-18-00296-CV, 2018 WL 1417409, at *1 (Tex. App.—Dallas Mar.
22, 2018, 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. Walker
v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rule 52.3(k)(1)(A)
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requires the 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 the 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).
Relator has attached copies of documents to his petition, but the documents
are not certified or sworn copies and thus not properly authenticated under the rules
of appellate procedure. Documents become sworn copies when they are attached to
an affidavit or to an unsworn declaration conforming to section 132.001 of the Texas
Government Code. See TEX. GOV’T CODE ANN. § 132.001; In re Butler, 270 S.W.3d
757, 759 (Tex. App.—Dallas 2008, orig. proceeding); In re Taylor, 28 S.W.3d 240,
245, (Tex. App.—Waco 2000, orig. proceeding), disapproved on other grounds by
In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). The affidavit or unsworn declaration
must affirmatively show it is based on the affiant’s personal knowledge. See Butler,
270 S.W.3d at 759. The affidavit or unsworn declaration is insufficient unless the
statements in it are direct and unequivocal and perjury can be assigned to them. See
id. To comply with the rules, the affidavit or unsworn declaration must state the
affiant has personal knowledge that the copies of the documents in the appendix are
correct copies of the originals. See id.
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Without certified or sworn copies of the motions and requests and documents
showing he requested a ruling, relator cannot establish the trial court had a legal duty
to rule on the motion and thus violated a ministerial duty. See Prado, 522 S.W.3d at
2; Butler, 270 S.W.3d at 759. Relator does not include a certified or sworn copy of
the trial court’s docket sheet or other proof that would establish relator filed the
motions as he alleges, requested a ruling on them from the trial court, and the trial
court failed to act on his motions within a reasonable time.1
We conclude the mandamus record is insufficient to establish that the motion
for forensic DNA testing was properly filed and timely presented and that the trial
court was asked to rule but failed to do so within a reasonable time. See Prado, 522
S.W.3d at 2. As such, relator has not established a violation of a ministerial duty
and is not entitled to mandamus relief. Accordingly, we deny relator’s petition for
writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the petition if
the court determines relator is not entitled to the relief sought).
Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
191537F.P05
1
Although it is unofficial, we note that the trial court’s online docket sheet does not reflect relator filed
the May 20, 2019 motion at issue.
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