in Re: Arthur Herbert Phillips ( 2022 )

DENIED and Opinion Filed January 31, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01068-CV
No. 05-21-01069-CV
No. 05-21-01070-CV
IN RE ARTHUR HERBERT PHILLIPS, Relator
Original Proceedings from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 199-80602-89, 199-80603-89 & 199-80604-89
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Myers
Arthur Herbert Phillips has filed a petition for writ of mandamus seeking to
nullify the trial court’s judgments in these cases on the ground the judgments are
void because the trial court should have conducted a competency hearing before
accepting his guilty pleas and imposing fifty-year sentences. We deny relief.
Included with relator’s petition is a partial motion appearing to seek permission to
file his petition. Because the motion is unnecessary, we deny it as moot. See TEX. R.
APP. P. 52.1.
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
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 filed an “Inmate’s Declaration” stating under penalty
of perjury “that according to [his] belief the facts stated in this instrument are true
and correct.” Relator’s declaration does not indicate that the statements in the
petition are supported by competent evidence in the appendix or record. Thus his
certification does not meet the requirements of rule 52.3(j). See id.Additionally, relator’s petition is not accompanied by a sufficient record to
support his assertions. 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 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 requires 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).
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Relator’s petition is supported only by an uncertified, unsworn copy of a
single page of medical records and a one-page summary he prepared of his diagnosis
and medications from mental health treatment in 1969. Without a sufficient record
of documents to support his petition, relator cannot show he is entitled to mandamus
relief. See Butler, 270 S.W.3d at 759.
Finally, we note that even if relator corrected the deficiencies we have
described, he is not entitled to relief. Although filed as a petition for writ of
mandamus, relator’s petition is a collateral attack on his final felony convictions
seeking what should be characterized as article 11.07 habeas relief. See TEX. CODE
CRIM. PROC. ANN. art. 11.07, §1; In re Ayers, 515 S.W.3d 356, 356–57 (Tex. App.—
Houston [14th Dist.] 2016, orig. proceeding) (per curiam); see also In re Jones, No.
01-20-00490-CR, 2020 WL 4210489, at *1 (Tex. App.—Houston [1st Dist.] July
23, 2020, orig. proceeding) (mem. op, not designated for publication).
Only the court of criminal appeals may grant article 11.07 relief. See TEX.
CODE CRIM. PROC. ANN. art. 11.07, §§3, 5; Bd. of Pardons and Paroles ex rel. Keene
v. The Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig.
proceeding); see also In re Morrison, No. 05-15-00519-CV, 2015 WL 1910329, at
*1 (Tex. App.—Dallas 2015, orig. proceeding) (mem. op.) (court of appeals has no
jurisdiction over complaints that should be raised in post-conviction 11.07 writ
application).
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Because relator’s petition is deficient and relator has not shown he is entitled
to relief, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P.
52.8(a).
/Lana Myers//
211068f.p05 LANA MYERS
211069f.p05 JUSTICE
211070f.p05
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