in Re: Lawrence Allen Fuller ( 2021 )

DENIED and Opinion Filed October 22, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00674-CV
No. 05-21-00675-CV
IN RE LAWRENCE ALLEN FULLER, Relator
Original Proceedings from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F97-01742-RJ & F97-02170-TJ
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
Lawrence Allen Fuller has filed a petition seeking a writ of mandamus to
compel the trial court that convicted him of two aggravated robbery offenses to issue
a ruling on a motion for post-conviction DNA testing that he alleges he filed in 2017.
Because relator’s petition is not supported by a sufficient, properly authenticated
record, we deny relief without prejudice to refiling.
To obtain mandamus relief compelling the trial court to rule on his motion,
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 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 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).
To obtain mandamus relief, relator’s record 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 within a reasonable time. In re Prado, 522 S.W.3d
1, 2 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.); In re Molina, 94
S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (per curiam).
To support his petition, relator has filed copies of the judgments and
indictments in his cases, three file-stamped letters serving as reminders that the
motion is pending, and a copy of an email message from a deputy district clerk
regarding the cost of copies of motions. Relator has not filed a copy of the motion
requesting post-conviction DNA testing for which he seeks mandamus.
The motion for post-conviction DNA testing is a “document showing the
matter complained of” and a material document to relator’s claim for relief that was
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filed in the underlying proceedings. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Moreover, the documents appellant has filed are neither certified nor sworn copies.
To qualify as sworn copies, relator would need to attach the documents to an
affidavit or an unsworn declaration conforming to section 132.001 of the Texas Civil
Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001; In
re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding); In re
Long, 607 S.W.3d 443, 445 (Tex. App.—Texarkana 2020, orig. proceeding); In re
Hughes, 607 S.W.3d 136, 138 n.2 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding). The affidavit or unsworn declaration must show the affiant or declarant
has personal knowledge of the documents and the statements about the documents
must be direct and unequivocal such that perjury can be assigned to them. See Butler,
270 S.W.3d at 759. An affidavit meets the requirements of rule 52 if it states under
penalty of perjury that the affiant or declarant has personal knowledge that the copies
of the documents in the appendix are true and correct copies of the originals. See id.An unsworn declaration, when filed by an inmate, must be signed by the inmate;
must state under penalty of perjury that the documents are true and correct copies of
the originals; and must include the information set forth in section 132.001: the
inmate’s name; date of birth; inmate identifying number; prison unit; and the city,
county, state, and zip code for the prison unit. See Hughes, 607 S.W.3d at 138 n.2.
With some of his documents, relator has filed a statement purporting to certify
that the documents are exact copies of what he has filed. None of the certifications
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are made under penalty of perjury and none of them bear relator’s signature. The
certifications are not affidavits nor do they satisfy the requirements of section
132.001 to qualify the documents as sworn copies. See Butler, 270 S.W.3d at 758–
59 (concluding affidavit was inadequate to authenticate appendix where it stated
documents were “to my knowledge true and correct copies of the original
documents”); TEX. CIV. PRAC. & REM. CODE ANN. § 132.001.
Without a properly authenticated record, relator cannot show that he filed the
motion, requested a ruling, reminded the trial court that the motion was pending, and
that the trial court refused to rule on the motion. See Prado, 522 S.W.3d at 2. Thus,
relator cannot show he is entitled to mandamus relief. See Butler, 270 S.W.3d at
759.
We deny the petition for writ of mandamus without prejudice to filing a new
petition for writ of mandamus accompanied by an authenticated record. See TEX. R.
APP. P. 52.8(a).
/Bill Pedersen, III//
210674f.p05 BILL PEDERSEN, III
210675f.p05 JUSTICE
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