in Re Alva Z. McGrath Junior

Petition for Writ of Mandamus Denied and Memorandum Majority and
Dissenting Opinions filed May 19, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00744-CR
NO. 14-21-00745-CR
NO. 14-21-00746-CR
NO. 14-21-00747-CR
IN RE ALVA Z. MCGRATH JUNIOR, Relator
ORIGINAL PROCEEDINGS
WRITS OF MANDAMUS
179th District Court
Harris County, Texas
Trial Court Cause Nos. 940494, 940495, 940496 & 881224
MEMORANDUM DISSENTING OPINION
Here we go again with imposing “extra rules” on people who are incarcerated.
Once again this court denies mandamus relief to an incarcerated person based on the
erroneous notion that in criminal cases, motions—other than motions for new trial—
must in effect be presented to the trial court, not merely filed. See In re Gomez, 602
S.W.3d 71, 74–75 (Tex. App.—Houston [14th Dist.] 2019) (orig. proceeding)
(Spain, J., concurring); In re Pete, 589 S.W.3d 320, 323–324 (Tex. App.—Houston
[14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring).
In these four petitions for a writ of mandamus, relator includes a Domestic
Return Receipt PS Form 3811 (“green card”) that is properly addressed to the Harris
County District Clerk (both the street address and post office box) and was returned
with a signature dated September 2, 2021. Relator states the following under penalty
of perjury:
IV.
In this Court’s opinion it was stated that “although relator has submitted
a copy of a ‘formal request” to rule on defendant(s) [sic] motions’ that
includes a declaration and a certificate of service that the request was
mailed to the Trial Court on March 31, 2021 relator has not submitted
a file-stamped copy of either of the motions.”
V.
McGrath attempted to get file-stamped copies as requested by this
court. On 9-2-21 sent via certified mail, one Arthur Simpson signed for
a request asking District Clerk Marilyn Burgess to send McGrath
file-stamped copies of his motions for appointment of counsel and his
motion to compel the District Attorneys Office to give DNA results to
Defendant, SEE attachment A: as of 12-3-21 the District Clerks Office
has had no correspondence with McGrath. Due to the employee’s of the
State McGrath is unable to fullfill the requirement past down by this
Court.
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VI.
The 179th District Court has refused to do its ministerial duties to rule
on McGrath(’s) properly filed motion(s), which has been in the Court
for 11 months.
VII.
Under the prisoner mail box rule,1 any motion filed by a TDC offender
is considered filed in the court on the day it reaches the mailroom on
the unit the offender is on. As an offender in TDC, McGrath] has no
other avenue available to him except to write a request for file-stamped
copies, which he has, to no avail. Because the clerk’s office ignored his
request, he is unable to fulfill this court’s requirements, making the
requirement unfair, if not unconstitutional.
This court now assumes that the four motions directed to the district court to
compel the Harris County District Attorney’s Office to give DNA results to relator
and to appoint counsel for relator have been filed.2 Although the court does not use
the word “presentment,” the court questions whether the trial court is “aware of the
motions.” By any other name, that is presentment.3 The court next questions whether
“relator has . . . shown that . . . a reasonable time had passed without the trial court
taking any action on his motions.”
As a general statement and not one directed at the trial judge in these original
proceedings, I have no idea how an incarcerated individual can make a trial judge
“aware” of motions on file in the clerk’s office if that judge does not “dispose of all
1
See Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010) (citing Tex. R. App. 9.2(b));
Houston v. Lack, 487 U.S. 266, 275–76 (1988); Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007)).
2
The relator has so stated under penalty of perjury. The court appears to assume that the relator is
not committing perjury.
3
Insofar that the court is serious about the trial court’s awareness of what is pending on its docket,
I presume there are court coordinators or automated docket management programs that could help the trial
could manage things. See Butler v. State, 6 S.W. 3d 636, 640–41 (Tex. App.—Houston [1st Dist.] 1999,
pet. ref’d) (discussing presentment, including role of court coordinator).
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judicial matters promptly, efficiently, and fairly.” See Tex. Code Jud. Conduct,
Canon 3(B)(9). And what else is relator supposed to do, or can he do? He is a
prisoner at the Texas Department of Criminal Justice’s W.F. Ramsey Unit. Is this
court dangling the Myth of Sisyphus before relator, i.e., “Keep trying to roll that
large stone to the top of the hill, maybe in a few thousand years you might make it.”
Can relator ever get a ruling on the merits from us? Is three months a reasonable
time to pass for the trial court to rule on a motion?4
Unfortunately for relator there is a different reason that we should not reach
the merits, and I dissent because the proper disposition is to give relator notice that
his original proceedings do not comply with actual—not “extra”—rules, Texas Rule
of Appellate Procedure 52.3(j), 52.3(k)(1)(A) and 52.7(a). Tex. R. App. P. 52.3(j)
(“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.”) (emphasis added); 52.3(k)(1)(A)
(“The appendix must contain: (A) a certified or sworn copy of any order complained
of, or any other document showing the matter complained of[.]”) (emphasis added);
52.7(a) (“Relator must file with the petition: (1) 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; and (2) a properly authenticated transcript of any relevant
testimony from any underlying proceeding, including any exhibits offered in
evidence, or a statement that no testimony was adduced in connection with the matter
complained.”) (emphasis added). Because the Code Construction Act applies to the
Texas Rules of Appellate Procedure, the word “must” creates or recognizes a
4
Were I able to reach the merits, the trial court not ruling in three months is arguably not
unreasonable, although the COVID-19 pandemic has allowed criminal courts time to catch up on things
that can be submitted without a hearing.
4
condition precedent. Tex. Gov’t Code Ann. §§ 311.002(4) (applying Act to rules),
.016(3) (defining “must”). That is a legitimate reason—based on legitimate rules—
to not grant relator’s requested relief.
Persisting in my view that our duty as judges is to reach a decision on the
merits based on a proper record and that due process and due course of law require
that this court give notice when the original-proceeding record does not comply with
the Texas Rules of Appellate Procedure, I would give relator 45-days notice of
involuntary dismissal for failure provide (a) certification of the petitions, (b) an
appendix containing a certified or sworn copy of any order complained of, or any
other document showing the matter complained of, and (c) a mandamus record
containing (1) 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 and (2) a
properly authenticated transcript of any relevant testimony from any underlying
proceeding, including any exhibits offered in evidence, or a statement that no
testimony was adduced in connection with the matter complained. Tex. R. App. P.
52.7(a); see In re Kholaif, 624 S.W.3d 228, 231 (order), mand. dism’d, 615 S.W.3d
369 (Tex. App.—Houston [14th Dist.] 2020) (orig. proceeding); see also Tex. R.
52.3(k)(1) (necessary contents of petition); Tex. Civ. Prac. & Crim. Code Ann.
§ 132.001(e) (authorizing unsworn declarations).5
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Civil Practice and Remedies Code section 132.001(e) provides:
(e) An unsworn declaration made under this section by an inmate must include a
jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
date of birth is _____________________, and my inmate
identifying number, if any, is __________________. I
am presently incarcerated in ________________________
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We must faithfully execute the duties of our office. If that means an
incarcerated individual receives relief, so be it. That relief may not benefit the next
Michael Morton or Anthony Graves, but we still have a duty to answer the issues
properly before us.
I dissent from the court’s failure to provide notice and an opportunity to cure
in each of these four petitions for writs of mandamus.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Jewell, and Spain (Spain, J., dissenting).
Do Not Publish — Tex. R. App. P. 47.2(b).
(Corrections unit name)
in _____________, _________, _______, ____________. I
(City) (County) (State) (Zip Code)
declare under penalty of perjury that the foregoing is true and correct.
Executed on the _____ day of ________, _______.
(Month) (Year)
____________________
Declarant”
Tex. Civ. Prac. & Rem. Code Ann. § 132.001(e).
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