in Re Dmitry Kruglov ( 2020 )

Petitions for Writs of Mandamus Dismissed and Majority and Concurring
Memorandum Opinions filed September 15, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00383-CR
NO. 14-20-00384-CR
IN RE DMITRY KRUGLOV, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Court No. 3
Galveston County, Texas
Trial Court Cause Nos. MD-0368264 & MD-0368265
MAJORITY MEMORANDUM OPINION
On June 2, 2020, relator Dmitry Kruglov filed petitions for writs of mandamus
in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the
petitions, relator asks this court to compel the Galveston County Clerk to forward
his notices of appeal to the court of appeals.1
On October 3, 2019, the trial judge signed the orders denying relator’s motions
to vacate the judgments and to set a hearing for ineffective assistance of counsel.
Kruglov purportedly filed notices of appeal and applications to proceed without the
payment of fees. According to relator, “a supervisor clerk” said no action would be
forthcoming because she did not know how to handle misdemeanor appeals.
To be entitled to mandamus relief on the merits, a relator must show (1) that
the relator has no adequate remedy at law for obtaining the relief the relator seeks
and (2) a clear right to the relief sought. In re Powell, 516 S.W.3d 488, 494–95 (Tex.
Crim. App. 2017) (orig. proceeding).
Ordinarily, this court does not have jurisdiction to issue a writ of mandamus
against a county clerk. See Tex. Gov’t Code Ann. § 22.221(b) (listing parties over
whom court of appeals has mandamus jurisdiction). However, we have jurisdiction
to grant mandamus relief when a clerk fails to forward a notice of appeal to the court
of appeals because issuance of the writ is necessary to enforce our jurisdiction. See
id. § 22.221(a) (providing that “each court of appeals or a justice of a court of appeals
may issue a writ of mandamus and all other writs necessary to enforce the
jurisdiction of the court”); In re Smith, 263 S.W.3d 93, 94–96 (Tex. App.―Houston
[1st Dist.] 2006, orig. proceeding) (holding court of appeals had jurisdiction to grant
requested mandamus relief against district clerk, who refused to file and forward
1
Relator named County Court No. 3 as the respondent. The actions relator complains of
are the “County Court clerk[’s]” failure to forward the notices of appeal to the court of appeals.
Therefore, the respondent is the Galveston County Clerk.
2
notice of appeal to court of appeals); In re Washington, 7 S.W.3d 181, 182 (Tex.
App.―Houston [1st Dist.] 1999, orig. proceeding) (same). A clerk has a mandatory,
ministerial duty to forward a notice of appeal to the court of appeals. See Smith, 263
S.W.3d at 95–96; Washington, 7 S.W.3d at 183.
Relator has certified that he “has reviewed the petition[s] and concluded that
every factual statement in the petition[s] is supported by competent evidence
included in the appendix or record.” See Tex. R. App. P. 52.3(j). However, relator’s
petitions are deficient on procedural grounds resulting in there being no evidence
properly before this court. Relator has not provided “a sworn or certified copy of any
order complained of, or any other document showing the matter complained of,” or
“a certified or sworn copy of every document that is material to the relator’s claim[s]
for relief and that was filed in any underlying proceeding.” Id. 52.3(k)(1) (appendix),
52.7(a)(1) (record).2 Nor has relator provided “a properly authenticated transcript of
any relevant testimony from any underlying proceeding, including any exhibits
2
The legislature has provided an alternate method of meeting the requirement of sworn
copies—an unsworn declaration. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001. An unsworn
declaration must be in writing and subscribed by the person making the declaration as true under
penalty of perjury. Id. § 132.001(c). Section 132.001(d) sets forth the jurat relator may use in an
unsworn declaration:
My name is, _____________________________ __________________________ ____________________________
(First) (Middle) (Last)
my date of birth is _______________________, and my address is
_____________________________, ___________________, ________________, ______________________________
(Street) (City) (State) (Zip Code)
and ___________________________________________ I declare under penalty of
(Country)
perjury that the foregoing is true and correct.
Executed in _____________ County, State of ____________________________________________________________
on the ______ day of __________________________________, _______________________________________________
(Month) (Year)
___________________________________
Declarant
Id. 132.001(d) (jurat for individual who is neither (1) inmate nor (2) employee of state agency or
political subdivision in performance of employee’s job duties).
3
offered in evidence, or a statement that no testimony was adduced in connection with
the matter[s] complained.” Id. 52.7(a)(2).
Accordingly, the court dismisses relator’s petitions for writs of mandamus
without prejudice to refiling petitions curing the above-identified deficiencies.3
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Bourliot, and Spain (Wise, J., concurring).
Do Not Publish—Tex. R. App. P. 47.2, 52.8(d).
3
See In re Hughes, Nos. 14-20-00442-CR, 14-20-00443-CR & 14-20-00444-CR, 2020 WL
5049341, at *1 (Tex. App.—Houston [14th Dist.] Aug. 27, 2020, orig. proceeding) (dismissing for
want of prosecution petitions for writs of mandamus for procedural effects relating to evidence to
support petitions).
4