In Re Corey Thomas v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-23-00224-CR
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IN RE COREY THOMAS
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Original Proceeding
252nd District Court of Jefferson County, Texas
Trial Cause No. 23DCCR0272
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MEMORANDUM OPINION
In a pro se petition for a writ of mandamus, Relator Corey Thomas asks this
Court to compel the trial court to hold an examining trial. See Tex. Code Crim. Proc.
Ann. art. 16.01 (“The accused in any felony case shall have the right to an examining
trial before indictment in the county having jurisdiction of the offense[.]”). We deny
mandamus relief.1
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Relator failed to certify that he served a copy of the mandamus petition on
the Respondent and the Real Party in Interest. See Tex. R. App. P. 9.5. We use Rule
2, however, to look beyond these deficiencies to reach an expeditious result. See
Tex. R. App. P. 2.
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To be entitled to mandamus relief in a criminal case, a relator must show that
he has no adequate remedy at law to redress his alleged harm and he must show that
he seeks to compel a ministerial act, not involving a discretionary or judicial
decision. See In re 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). “If a
party properly files a motion with the trial court in a criminal case, the court has a
ministerial duty to rule on the motion within a reasonable time after the motion has
been submitted to the court for a ruling or after the party has requested a ruling.” In
re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding). The mandamus record must show that the motion was filed and brought
to the attention of the trial court for a ruling, and the trial court failed to rule on the
motion within a reasonable time after the motion was submitted to the court for a
ruling or after the party requested a ruling. Id. The mandamus record must contain a
sworn or certified copy of any order complained of, or any other document showing
the matter complained of. See Tex. R. App P. 52.3(k)(1). A relator must certify that
he has reviewed the petition and concluded that every factual statement in the
petition is supported by competent evidence in the appendix or record. See Tex. R.
App. P. 52.3(j).
Relator claims he has been detained in custody without an examining trial
since his arrest on May 6, 2023. He fails to mention whether he has been indicted.
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He fails to mention whether he is represented by counsel in the trial court. He fails
to show that he invoked his right to an examining trial at a proper time and in an
appropriate manner. He fails to describe his attempts to bring his request for an
examining trial to the attention of the trial court. He fails to support his petition with
an appendix. He cites section 132.001 of the Civil Practice and Remedies Code,
which authorizes a person to use an unsworn declaration in lieu of a sworn
declaration, certification, or affidavit, but his declaration in not in the form required
by section 132.002. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001. To be
effective as a substitute for an affidavit, an unsworn declaration must be made under
penalty of perjury, so that the State may prosecute him for perjury if he makes a false
statement in the mandamus petition. See id.Relator failed to establish a right to mandamus relief. Accordingly, we deny
the petition for a writ of mandamus. See Tex. R. App. P. 52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on August 1, 2023
Opinion Delivered August 2, 2023
Do Not Publish
Before Horton, Johnson and Wright, JJ.
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