Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the Criminal District Court No. 1,
Dallas County, Texas, Trial Court Cause No. F01-53637-JH
Justices Bridges, Osborne, and Carlyle
L. BRIDGES JUSTICE
original proceeding, relator Jerome Johnson seeks a writ of
mandamus directing the trial court to rule on his request to
take judicial notice of various errors and deficiencies in
the record from his 2003 trial. He further requests this
Court take judicial notice of what he describes as official
records attached to his petition. We deny the petition for
to establish a right to mandamus relief in a criminal case,
the relator must show that the trial court violated a
ministerial duty and there is no adequate remedy at law.
In re State ex rel. Weeks, 391 S.W.3d 117, 122
(Tex.Crim.App. 2013) (orig. proceeding). As the party seeking
relief, the relator has the burden of providing the Court
with a sufficient mandamus record to establish his right to
mandamus relief. Walker v. Packer, 827 S.W.2d 833,
837 (Tex. 1992) (orig. proceeding). Rules 52.3 and 52.7
require the relator to provide "a certified or sworn
copy" of certain documents, including any order
complained of, any other document showing the matter
complained of, and every document that is material to the
relator's claim for relief that was filed in any
underlying proceeding. Tex. R. App. P. 52.3(k)(1)(A),
the mandamus record does not include a certified or sworn
copy of the trial court's docket sheet or other proof
that establishes relator filed the request, requested a
hearing and/or ruling on the request, and the trial court has
failed to act on relator's requests within a reasonable
time. Tex. R. App. P. 52.3(k)(1)(a), 52.7(a). In the appendix
index filed with his petition, relator lists as appendix item
number four: "A Copy of the Current Court's Docket
Sheet and log indicating the courts receipt of the motion,
Already on file see mandamus Record 05-19-00708-CV."
Within the appendix in the spot for item number four, there
is a sheet of paper with the handwritten notation, "The
original Docket Sheet indicating the Clerk of said court was
in possession of the Motion/Ds/Request for Judicial
Notice." No docket sheet is included.
no. 05-19-00708-CV is the first of a series of three mandamus
proceedings relator has filed arising from the same trial
court case. The mandamus record in that case contains a page
of what appears to be an uncertified partial copy of a docket
sheet running from July 31, 2001 to May 16, 2018. Even if we
were to accept the uncertified page as the trial court's
docket sheet, it sheds no light on what transpired on or
after February 28, 2019-the date relator claims he filed his
request for judicial notice. The request for judicial notice
itself does not bear a file stamp although there is a file
stamped cover letter that states the request is being filed.
requests that we take judicial notice of official records
allegedly attached to his petition consisting of State's
exhibits and testimony from his trial. We note that in the
appendix index, items six through eight describe state's
exhibits from his trial and portions of the reporter's
record. However, no documents are attached in the spots for
appendix items six and seven and appendix item eight is a
letter relator allegedly wrote to the district attorney.
Thus, relator has not presented a sufficient record for the
Court to take any action on his request for judicial notice
from this Court.
relator's request asks the trial court to take judicial
notice pursuant to Texas Rule of Evidence 201. Rule of
evidence 201(d) grants the trial court discretion to take
judicial notice "at any stage of the proceeding."
Because relator's post-judgment legal issues are ongoing,
we cannot conclude the trial court's ministerial duty to
rule upon relator's request has ripened to the point
where we can compel the trial court to act. See Tex.
R. Evid. 201(d); In re Echols, No. 10-16-00059-CV,
2016 WL 1069030, at *1 (Tex.App.-Waco Mar. 17, 2016 (orig.
Proceeding) (mem. op.).
even if we assume the trial court has a ripened duty to act
upon relator's request, the trial court must be afforded
a reasonable time to perform its ministerial duty. See In
re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001)
(orig. proceeding). The time period considered reasonable
depends upon the circumstances of each case and may involve
consideration of criteria such as the trial court's
actual knowledge of the motion, whether it has overtly
refused to act on the matter, the state of the trial
court's docket, and the existence of more pressing
judicial and administrative matters. Id. at
228–29. Relator bears the burden to provide the
appellate court with evidence weighing on the criteria to
consider in assessing the reasonableness of the alleged
delay. Id. at 229.
has not filed any evidence that would allow the Court to
consider the state of the trial court's docket and other
pending matters. From appellant's filings in this case
and two other mandamus actions pending before this Court, we
note that appellant has placed before the trial court several
lengthy filings requesting rulings.
conclude the record does not show the trial court is refusing
to rule on relator's request. We further conclude that
relator has not shown that, under the circumstances
presented, a reasonable time to rule upon the pending motion
has expired. See Chavez, 62 S.W.3d at 228–29.
relator filed his request for judicial notice in the trial
court and his petition for writ of mandamus in this Court as
a pro se litigant. Subsequently, the trial court has
appointed counsel to represent relator in his various
matters. Counsel has made an appearance in this Court, but
has not endorsed relator's pro se filings.
Relator is not entitled to hybrid representation. See
Robinson v. State, 240 S.W.2d 919, 922 (Tex.Crim.App.
2007). A trial court has no duty to rule upon pending pro
se motions when counsel is appointed for relator.
the record is insufficient to establish that the request has
been properly filed, timely presented, and that the trial
court was asked to rule but failed to do so; the rules of
evidence grant the trial court discretion regarding when to
rule on a request for judicial notice; relator has not shown
the trial court has had a reasonable time to rule upon the
request; and relator is not entitled to hybrid
representation; relator has not established a violation of a
ministerial duty and is not entitled to mandamus relief.
Accordingly, we deny relator's petition for ...