in Re Michael Dewayne Bookman ( 2021 )

DENIED and Opinion Filed August 27, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00492-CV
No. 05-21-00493-CV
No. 05-21-00494-CV
No. 05-21-00495-CV
IN RE MICHAEL DEWAYNE BOOKMAN, Relator
Original Proceeding from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F92-00522-WU,
F92-00523-WU, F92-00524-WU & F92-00525-WU
MEMORANDUM OPINION
Before Justices Schenck, Nowell, and Garcia
Opinion by Justice Nowell
In 1992, relator Michael Dewayne Bookman accepted a plea bargain
agreement under which he entered guilty pleas to four counts of capital murder and
received four consecutive life sentences. In these original proceedings, relator now
petitions for a writ of mandamus to declare the sentences void and to compel the trial
court to vacate them on the ground the trial court had a ministerial duty to assess
concurrent sentences.1 We deny relief.
1
Relator included with his petition a request for permission to file the petition. It is not necessary for
relator to request the Court’s permission before filing a petition for writ of mandamus. See TEX. R. APP. P.
52.1.
We begin by observing relator’s petition does not satisfy the requirements of
rule of appellate procedure 52 regarding the filing and authentication of a record to
support his petition. Relator must file with his petition a sufficient record to establish
his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)
(orig. proceeding). To create a sufficient record, 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). Rule 52.7(a)(2) requires the relator to file with the petition “a properly
authenticated transcript of any relevant testimony from any underlying proceeding,
including any exhibits offered into evidence, or a statement that no testimony was
adduced in connection with the matter complained.” TEX. R. APP. P. 52.7(a)(2).
Relator’s status as an incarcerated person does not relieve him of the obligation to
file a sufficient record. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th
Dist.] 2020, orig. proceeding).
In this case, relator has filed documents from the clerk’s record to support his
claim. However, the documents are not certified or sworn copies as required by rule
52. See TEX. R. APP. P. 52.3(k)(1)(A); 52.7(a)(1). Furthermore, relator offers us only
a portion of the reporter’s record from his plea hearing. See TEX. R. APP. P.
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52.7(a)(2). The portion of the reporter’s record he has filed does not include the court
reporter’s certification. The failure to file a properly authenticated and adequate
record justifies denying relator’s petition. See In re Butler, 270 S.W.3d 757, 759
(Tex. App.—Dallas 2008, orig. proceeding).
Finally, we observe that even if we could give credence to the unauthenticated
documents relator presents, relator has not shown he is entitled to relief on the merits.
Relator contends the trial court violated a ministerial duty to run his sentences
consecutively. See TEX. PENAL CODE ANN. § 3.03 (providing statutory right to
concurrent sentencing, subject to listed exceptions, for offenses committed in same
transaction and prosecuted in single criminal action).
However, the court of criminal appeals has held that a defendant may waive
concurrent sentencing as part of a plea bargain agreement as long as the decision to
enter the plea was counseled, intelligent, and voluntary. See Ex parte McJunkins,
954 S.W.2d 39, 41 (Tex. Crim. App. 1997) (op. on reh’g) (defendant charged with
two capital murder offenses had right to waive concurrent sentencing as part of plea
bargain reducing charges to murder and imposing consecutive life sentences). The
portion of the plea record relator has filed shows he was represented by counsel and
affirmed his desire to enter his guilty pleas after the trial court explained the way his
consecutive sentences would operate.
As relator concedes in his petition, the court of criminal appeals, citing
McJunkins, refused to grant him relief on a post-conviction application for writ of
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habeas corpus. Relator contends his mandamus proceedings should be resolved in
his favor because his habeas proceeding addressed his right to consecutive sentences,
while the mandamus proceedings address whether the trial court had a ministerial
duty to impose consecutive sentencing.
Mandamus is only available if the relator demonstrates the act to be compelled
is purely ministerial and that the relator has no adequate legal remedy. State ex rel.
Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). An act is ministerial
if the relator has a clear and indisputable right to relief with nothing left for the trial
court to exercise discretion or judgment. Id. Mandamus may not be used to overturn
a trial court ruling on an uncertain or unsettled question of law. Id.On the record presented, we cannot conclude relator has shown that the trial
court had a ministerial duty to reject the plea bargain agreement for consecutive
sentences that he negotiated with the State and assess concurrent sentences instead.
See McJunkins, 954 S.W.2d at 41; see also Ex parte Cox, 482 S.W.3d 112, 116 (Tex.
Crim. App. 2016) (describing plea agreements as contractual in nature, with terms
left to parties to determine, and rarely to be disturbed unless they violate due
process). Accordingly, we conclude on the record presented that relator has not
shown he is entitled to relief.
We deny relief on relator’s petition for writ of mandamus. See TEX. R. APP.
P. 52.8(a).
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/Erin A. Nowell//
210492f.p05 ERIN A. NOWELL
210493f.p05 JUSTICE
210494f.p05
210495f.p05
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