in Re Michael Marshall ( 2021 )

DENIED and Opinion Filed June 4, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00262-CV
IN RE MICHAEL MARSHALL, Relator
Original Proceeding from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F10-12634-Y & F10-12635-Y
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Goldstein
Opinion by Justice Osborne
Michael Marshall has filed a petition for writ of mandamus requesting the
Court to compel the trial court to rule on a motion for new trial. Because relator’s
petition is insufficient to support mandamus relief, we deny the petition.1
A petition seeking mandamus relief must include a certification stating that
the relator “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 certification must state substantially what is written in
1
We further note that the Dallas County District Clerk’s website, although not an official source,
indicates the trial court denied relator’s motion for new trial on March 5, 2021 which would render the
matter moot. See In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (original proceeding); In re
Harvey, No. 05-16-00155-CV, 2016 WL 1019377, at *1 (Tex. App.—Dallas Mar. 15, 2016, orig.
proceeding) (mem. op.).
rule 52.3(j). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig.
proceeding). In this case, relator has not filed a certification and thus has not
complied with rule 52.3(j). See id.In addition to not properly certifying his petition, relator has not filed an
authenticated record supporting his petition. Relator bears the burden to provide the
Court with a sufficient record to establish his right to mandamus relief. Walker v.
Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). To obtain mandamus
relief compelling a trial court to rule on his motion, relator must show (1) the trial
court had a legal duty to rule on the motion, (2) relator requested a ruling, and (3)
the trial court failed or refused to do so. In re Prado, 522 S.W.3d 1, 2 (Tex. App.—
Dallas 2017, orig. proceeding) (mem. op.).
To meet his evidentiary burden, rule 52.3(k)(1)(A) requires 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 filed only a filestamped copy of the motion showing it was filed
February 10, 2021. Without certified copies of documents showing relator filed the
motion, requested a ruling, reminded the trial court that the matter was pending, and
that the trial court failed to rule on the motion despite having a reasonable time to
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do so, relator cannot show he is entitled to mandamus relief. See Prado, 522 S.W.3d
at 2; Butler, 270 S.W.3d at 759.
Accordingly, we deny the petition for writ of mandamus.
/Leslie Osborne//
210262f.p05 LESLIE OSBORNE
JUSTICE
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