in Re: Jerome Johnson ( 2022 )

DENIED and Opinion Filed April 8, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00051-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 Schenck, Reichek, and Carlyle
Opinion by Justice Schenck
Jerome Johnson has petitioned the Court for a writ of mandamus to compel
the trial court to order the court reporter to supplement the reporter’s record from his
2003 appeal to include a record of the examining trial. We deny relief.
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). 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)
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’s status as an inmate does not relieve him of his duty to
comply with the rules of appellate procedure. In re Foster, 503 S.W.3d 606, 607
(Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam).
Relator has filed several documents as exhibits to his petition. Although two
of relator’s documents are file stamped by the district clerk, none of his documents
are certified copies as required by rule 52.
In an apparent effort to authenticate the documents as sworn copies, relator
has submitted a statement he styles as an affidavit. Relator’s statement, however, is
not sworn to before a notary and does not bear a notary’s seal of office; thus the
statement does not constitute an affidavit under Texas law. See TEX. GOV’T CODE
ANN. § 312.011(1) (affidavit is “a statement in writing of a fact or facts signed by
the party making it, sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under his seal of office.”).
In lieu of an affidavit, an inmate may also authenticate documents with an
unsworn declaration that meets the criteria set out in the civil practice and remedies
code. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(c), (e) (describing
requirements for unsworn declaration by inmate). However, relator’s statement does
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not qualify as an unsworn declaration sufficient to authenticate the documents.
Relator’s statement does not represent it was made under penalty of perjury and it
does not include the jurat required to establish it as an unsworn declaration by an
inmate. See id. Without proper authentication, relator’s documents do not provide a
basis for mandamus relief. See In re Butler, 270 S.W.3d 757, 759 (Tex. App.—
Dallas 2008, orig. proceeding).
Finally, even if relator filed a new petition with an authenticated supporting
record, he would not be entitled to relief. Our records show relator was convicted of
sexual assault and sentenced to serve forty-two years in prison for the offense. This
Court affirmed his conviction in 2005. See Johnson v. State, No. 05-03-01058-CR,
2005 WL 647516 (Tex. App.—Dallas Mar. 22, 2005, pet. ref’d) (not designated for
publication). Because relator did not file a timely motion for rehearing, our plenary
jurisdiction over relator’s appeal ended sixty days after the Court issued its
judgment. See TEX. R. APP. P. 19.1. Our Court issued its mandate in the appeal on
December 28, 2005. Our plenary jurisdiction over the appeal ended
Relator’s direct appeal has long been adjudicated, and any motions to
supplement the record for his appeal are moot and beyond the trial court’s
jurisdiction to consider. See Banda v. State, No. 05-06-00370-CR, 2007 WL
2004920, at *2 (Tex. App.—Dallas July 12, 2007, pet. ref’d) (op. on reconsideration,
not designated for publication) (supplemental record timely if filed within appellate
court’s period of plenary jurisdiction over appeal). The trial court’s jurisdiction at
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this point is limited to certain matters such as ensuring that a higher court’s mandate
is carried out, fact finding on habeas applications, and determining whether a
convicted person is entitled to post-conviction DNA testing. State v. Patrick, 86
S.W.3d 592, 594 (Tex. Crim. App. 2002) (plurality op.).
Without a basis to assert jurisdiction over a matter that is now moot, the trial
court does not have a ministerial duty to act on relator’s motion to supplement the
record. See In re Pettigrew, 301 S.W.3d 920, 921–22 (Tex. App.—Tyler 2009, orig.
proceeding) (mem. op.) (trial court has no jurisdiction and thus no ministerial duty
to grant motion to supplement record with testimony from pretrial hearing where
motion filed fifteen years after appeal was adjudicated); see also In re Holland, No.
05-21-00435-CV, 2021 WL 4189954, at *1 (Tex. App.—Dallas Sept. 15, 2021, orig.
proceeding) (mem. op.) (no showing of right to mandamus relief for failure to rule
on pending motion where trial court lacks jurisdiction to rule on motion).
Because relator’s petition is not supported by a proper record and there is no
showing he is entitled to relief, we deny the petition for writ of mandamus. See TEX.
R. APP. P. 52.8(a).
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
220051F.P05
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