In Re: Jackie Dewayne Andrews v. the State of Texas

NO. 12-23-00257-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: §

JACKIE DEWAYNE ANDREWS, § ORIGINAL PROCEEDING

RELATOR §

MEMORANDUM OPINION
PER CURIAM
Jackie Dewayne Andrews, acting pro se, filed this original proceeding to challenge
Respondent’s failure to rule on his motion seeking a subsequent habeas corpus writ. 1
On October 2, 2023, the Clerk of this Court informed Relator that his petition fails to
comply with appellate Rules 52.3(b), (c), and (j) and 52.7. See TEX. R. APP. P. 52.3 (form and
contents of petition); TEX. R. APP. P. 52.7 (record). The notice warned that the petition would be
referred to this Court for dismissal unless Relator provided the record and an
amended/supplemental petition on or before October 13. Relator filed a motion for extension of
time, which failed to comply with appellate Rule 9.5’s service requirements. See TEX. R. APP. P.
9.5. The Clerk of this Court notified Relator of this failure and warned that the motion may be
overruled if a certificate of service was not filed on or before November 3. Relator did not file a
certificate of service or otherwise respond to this Court’s notice.
Generally, a party seeking mandamus relief must bring forward all that is necessary to
establish his claim for mandamus relief. See TEX. R. APP. P. 52. Texas Rule of Appellate
Procedure 52.7 requires the relator to file a record as part of his petition in an original
proceeding. TEX. R. APP. P. 52.7. Specifically, a relator must file (1) a certified or sworn copy
of every document that is material to his claim for relief and that was filed in any underlying

1
Respondent is the Honorable Debra E. Gunter, Judge of the 241st District Court in Smith County, Texas.
The State of Texas is the Real Party in Interest.
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). It is
a relator’s burden to provide this Court with a record sufficient to establish the right to
extraordinary relief. See In re Daisy, No. 12-13-00266-CR, 2014 WL 5577068, at *2 (Tex.
App.–Tyler Aug. 29, 2014, orig. proceeding) (mem. op., not designated for publication). In this
case, Relator did not provide a record in accordance with Rule 52.7. Absent a record, we cannot
determine whether Relator is entitled to relief. See In re McCreary, No. 12-15-00067-CR, 2015
WL 1395783 (Tex. App.–Tyler Mar. 25, 2015, orig. proceeding) (per curiam) (mem. op., not
designated for publication).
Additionally, “[i]f 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); see
also In re Ramos, 598 S.W.3d 472, 474 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding) (judge was aware of motion for judgment nunc pro tunc approximately five months
before appellate court opinion; thus, judge did not rule on motion within reasonable time); In re
Sayyed, No. 05-20-00195-CV, 2020 WL 6074117, at *3 (Tex. App.—Dallas Oct. 15, 2020, orig.
proceeding) (mem. op. on reh’g) (at time of October 2020 opinion, respondent had learned of
motion on July 1, 2020; thus, reasonable time for ruling had not passed). To obtain a writ
of mandamus in this context, the relator must show that the trial court (1) had a legal duty to
perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do
so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.–San Antonio 2003, orig. proceeding). A trial
court cannot be expected to consider a motion not called to its attention. See In re Chavez, 62
S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). It is incumbent upon the relator
to establish that the motion has been called to the trial court's attention. See id.
Because Relator failed to provide a record, he cannot show that his motion was brought
to Respondent's attention. At best, Relator states that he filed a motion requesting to file a
subsequent habeas corpus writ, a motion under the Michael Morton Act, and a motion to appoint
counsel on March 3, 2023, and the district clerk dated the motions for March 14. From the
documents Relator provides, it appears that the district clerk dated his cover letter for March 14,

2
2023. The online Smith County records reflect that two motions and “inmate mail” were filed on
March 14.
A relator’s statement that a document was properly filed with the clerk is an insufficient
basis from which to reasonably infer that the trial court had notice of that document and the need
to act on it. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig.
proceeding). Even showing that a motion was filed with clerk does not prove the motion was
brought to the trial court’s attention or was presented to the trial court with a request for a
ruling; a clerk’s knowledge is not imputed to the trial court. Id.; Chavez, 62 S.W.3d at 228.
Relator does not demonstrate any steps taken to ensure that the trial court was afforded or had
notice of his motion. See Chavez, 62 S.W.3d at 228. Under these circumstances, Relator has not
established his entitlement to mandamus relief. See In re Wheeler, No. 12-18-00127-CR, 2018
WL 2440464, at *1-2 (Tex. App.—Tyler May 31, 2018, orig. proceeding) (mem. op., not
designated for publication) (denying mandamus relief when relator failed to show that he called
motion for DNA testing to respondent’s attention); see also In re Foster, 503 S.W.3d 606, 607
(Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam) (denying petition for writ
of mandamus asking appellate court to order judge to hold a hearing on habeas application
seeking personal bond under Article 17.151; relator provided no certified or sworn copy of
the habeas application or a record that showed application was filed and brought
to trial court’s attention); In re Lee, No. 12-13-00332-CR, 2014 WL 4755503, at *1 (Tex.
App.—Tyler Sept. 24, 2014, orig. proceeding) (mem. op., not designated for publication)
(denying mandamus relief where relator failed to establish that motion and habeas application
were called to trial court’s attention).
Accordingly, we deny the petition for writ of mandamus. All pending motions are
overruled as moot.

Opinion delivered November 15, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

NOVEMBER 15, 2023

NO. 12-23-00257-CR

JACKIE DEWAYNE ANDREWS,
Relator
V.

HON. JUDGE DEBRA E. GUNTER,
Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by
Jackie Dewayne Andrews; who is the relator in appellate cause number 12-23-00257-CR and the
defendant in trial court cause number No. 241-81320-99, formerly pending on the docket of the
241st Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having
been filed herein on October 2, 2023, and the same having been duly considered, because it is the
opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED
and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.