In Re: Dennis Jerome Pierce v. the State of Texas ( 2023 )

DENIED and Opinion Filed March 29, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00136-CV
IN RE DENNIS JEROME PIERCE, Relator
Original Proceeding from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F02-24969-Q
MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Kennedy
Opinion by Justice Kennedy
In this original proceeding, Dennis Jerome Pierce has filed a petition for writ
of mandamus seeking to compel the trial court to rule on a “Request for Judgment
of Nunc Pro Tunc to Properly Reflect Court Ruling and Correct an Illegal Sentence”
he allegedly filed on September 29, 2022.
Relator’s petition is improperly certified with an unsworn declaration
declaring “under penalty of perjury that the foregoing document is true and correct
to the best of my knowledge.” See TEX. R. APP. P. 52.3(j) (requiring relator to certify
that he has reviewed the petition and concluded that all factual statements are
supported by competent evidence in appendix or record).
Additionally, relator’s petition is not supported by an adequate record. To
obtain mandamus relief for a trial court’s failure to rule on a motion, the relator must
show that the trial court (1) had a legal duty to rule on the motion; (2) was asked to
rule on the motion; and (3) failed to do so. In re Prado, 522 S.W.3d 1, 2 (Tex. App.—
Dallas 2017, orig. proceeding). 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). The record must contain certified
or sworn copies of all relevant orders and material documents that show the matter
complained of or that were filed in the underlying proceeding. See TEX. R. APP. P.
52.3(k)(1)(A), 52.7(a)(1).
Relator’s record consists of unsworn, uncertified copies of a page from the
reporter’s record of relator’s 2013 adjudication hearing, the judgment adjudicating
relator’s guilt, a certified mail receipt showing the district clerk received something
from relator on September 29, 2022, and a printout of relator’s prison time credit.
There is no copy of the motion for judgment nunc pro tunc at issue nor is there
anything that would establish the motion has been filed, presented to the trial court,
and the trial court has failed to rule on it.
Without a properly certified petition supported by a record of certified or
sworn copies of material documents, relator cannot show he is entitled to mandamus
relief. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a); Prado, 522 S.W.3d at 2; In re
Butler, 270 S.W.3d 757, 758–59 (Tex. App.—Dallas 2008, orig. proceeding).
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Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.
52.8(a).
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
230136F.P05
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