in Re Corey Dewayne Wilbert ( 2023 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00002-CR
IN RE COREY DEWAYNE WILBERT
Original Mandamus Proceeding
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Corey DeWayne Wilbert, proceeding pro se, has petitioned this Court for mandamus
relief. Wilbert asks us to compel the Honorable Robert Rolston, presiding judge of the 276th
Judicial District Court of Camp County, Texas, to rule on his motion to compel his trial counsel
to relinquish the client file of counsel’s representation of relator in cause number CF-17-
01787-A. We conclude that the petition is not properly authenticated and that Wilbert has not
provided us with a sufficient record. We deny the requested relief.
Wilbert states that, on August 27, 2019, he wrote to his trial counsel and requested the
client file but received no response from counsel. He also states that, on March 3, 2022, he filed
a motion to compel his trial counsel to relinquish his client file from cause number CF-17-
01787-A and that he wrote a letter to the district clerk on April 11, 2022, to request a ruling on
his motion and to inquire whether the trial court had ruled on the motion. Wilbert states that he
has not received a response from the court or district clerk. However, Rule 52.3(j) of the Texas
Rules of Appellate Procedure provides, “The person filing the petition must certify that he or she
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
mandamus petition failed to contain a certification that each of his factual statements was
supported by competent evidence included in the appendix or record, as required by Rule 52.3(j).
In addition, Wilbert has the burden to properly request and show his entitlement to
mandamus relief. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.]
1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must
2
show himself entitled to the extraordinary relief he seeks.”). To do so, Wilbert must show that
“he has no adequate remedy at law to redress his alleged harm” and “that what he seeks to
compel is a ministerial act, not involving a discretionary or judicial decision.” State ex rel.
Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007) (orig. proceeding). “[C]onsideration of a motion that is properly filed and before the
court is [a] ministerial” act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.
1987) (orig. proceeding); see In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005,
orig. proceeding). However, before mandamus may issue, the relator must show that the trial
court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to
act. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding); see
also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding)
(“Showing that a motion was filed with the court clerk does not constitute proof that the motion
was brought to the trial court’s attention or presented to the trial court with a request for a
ruling.”). Wilbert must provide this Court with a sufficient record to establish his right to
mandamus relief. See In re Fox, 141 S.W.3d 795, 797 (Tex. App.—Amarillo 2004, orig.
proceeding); In re Mendoza, 131 S.W.3d 167, 167–68 (Tex. App.—San Antonio 2004, orig.
proceeding).
Rule 52.7(a)(1) states that a relator must file with the petition “a certified or sworn copy
of every document that is material to the relator’s claim for relief and that was filed in any
underlying proceeding.” TEX. R. APP. P. 52.7(a)(1). Rule 52.3(k)(1)(A) provides, “The
appendix must contain . . . a certified or sworn copy of any order complained of, or any other
3
document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). “‘Documents that
are attached to a properly prepared affidavit are sworn copies,’ while documents attached to an
improperly prepared affidavit are not.” In re Long, 607 S.W.3d 443, 445 (Tex. App.—
Texarkana 2020, orig. proceeding) (quoting In re Henderson, No. 06-15-00034-CR, 2015 WL
13522812, at *1 (Tex. App.—Texarkana Mar. 10, 2015, orig. proceeding) (mem. op.)). “The
affidavit ‘must affirmatively show it is based on the personal knowledge of the affiant’; the
affidavit ‘is insufficient unless the statements in it are direct and unequivocal and perjury can be
assigned to them.’” Id. (quoting In re Henderson, 2015 WL 13522812, at *1). “Because the
record in a mandamus proceeding is assembled by the parties,’ we must ‘strictly enforce[] the
authentication requirements of rule 52 to ensure the integrity of the mandamus record.” Id.(quoting In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.—Dallas
Mar. 22, 2019, orig. proceeding) (mem. op.).
Wilbert has not met his burden to provide a record sufficient to show himself entitled to
mandamus relief because the only document contained in the appendix to his petition is a file-
marked copy of his motion to compel that is neither certified nor sworn, as required by Rules
52.7(a)(1) and 52.3(k)(1)(A). In addition, the appendix does not contain any properly sworn or
certified documents that show that his motion was brought to the trial court’s attention or was
presented to the trial court. See In re Blakeney, 254 S.W.3d at 662.
4
We deny Wilbert’s petition for a writ of mandamus because the petition is not properly
authenticated and he has failed to provide this Court with a record sufficient to establish that he
is entitled to mandamus relief.
Scott E. Stevens
Chief Justice
Date Submitted: January 23, 2023
Date Decided: January 24, 2023
Do Not Publish
5