Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 219th Judicial District Court
Collin County, Texas Trial Court Cause No. 380-82405-07
Justices Myers, Molberg, and Nowell
original proceeding, relator has filed a petition for writ of
mandamus requesting the Court to compel the trial court to
rule upon and grant relator's April 26, 2019 "Motion
to Vacate the Void Order to Amend the Indictment Nunc Pro
Tunc." Secondarily, relator contends we should grant
mandamus relief because the trial court's order to amend
the indictment is void. We deny relief.
2008, a jury convicted relator of theft of property with a
value of at least $20, 000 but less than $100, 000. On direct
appeal, this Court affirmed his conviction. See Sayyed v.
State, No. 05-08-01198-CR, 2009 WL 2884168 (Tex.
App.-Dallas Sept. 10, 2009, pet. ref'd) (not designated
for publication). In his direct appeal, relator complained
the trial court had not given him ten days to prepare after
it allowed the State, over his objection, to amend the
indictment on the day of trial to allege a different
complainant. See id. 2009 WL 2884168, at *7. We
overruled relator's issue because relator's trial
objection-that the new alleged complainant had no right to
the property-did not request additional time to prepare for
trial. See id.
present case, relator's motion to vacate the order
amending the indictment, as he explains at length in his
petition, seeks to compel the trial court to overturn the
order amending the indictment on the ground the order is
void. Relator has not, however, provided a sufficient record
to show his entitlement to mandamus relief from this Court.
establish a right to mandamus relief, 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). To show his entitlement to mandamus relief
compelling a trial court to rule on his motion, relator must
show (1) the trial court had a legal duty to rule on the
motion, (2) relator requested a ruling on the motion, and (3)
the trial court failed or refused to rule on the motion.
In re Prado, 522 S.W.3d 1, 2 (Tex. App.-Dallas 2017,
orig. proceeding); In re Molina, 94 S.W.3d 885, 886
(Tex. App.-San Antonio 2003, orig. proceeding) (per curiam).
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.
52.3(k)(1)(A) requires the relator to file an appendix with
his petition that contains "a certified or sworn copy of
any order complained of, or any other document showing the
matter complained of." Tex.R.App.P. 52.3(k)(1)(A). Rule
52.7(a)(1) requires the relator to file with the petition
"a certified or sworn copy of every document that is
material to the relator's claim for relief that was filed
in any underlying proceeding." Tex.R.App.P. 52.7(a)(1).
asks this Court to compel the trial court to rule upon his
motion to vacate, but he has not filed a copy of the motion
to vacate with his petition. Moreover, although relator states
he has filed "repeated requests" to rule on the
motion by letters to the trial court and the trial court
clerk and by filing "his other petition," there are
no documents before this Court showing relator has requested
a ruling on the motion or called the trial court's
attention to the motion.
certified or sworn copies of the motion to vacate and
documents showing he requested a ruling, relator cannot
establish the trial court had a legal duty to rule on the
motion and thus violated a ministerial duty. See
Prado, 522 S.W.3d at 2; In re Butler, 270
S.W.3d 757, 758- 59 (Tex. App.-Dallas 2008, orig.
proceeding). We conclude relator has failed to show the trial
court has a ministerial duty to rule on his motion to vacate.
petition also asserts, without regard to his motion, that
mandamus should issue to compel the trial court to overturn
the order amending the indictment on the ground the order is
void. A trial court has a ministerial duty to vacate a void
order. In re Paxton, No. 05-17-00507-CV, 2017 WL
2334242, at *5 (Tex. App.-Dallas May 30, 2017, orig.
proceeding). A trial court's order is void if the record
shows the trial court had no jurisdiction over the parties,
no jurisdiction of the subject matter, no jurisdiction to
enter the order, or no capacity to act as a court. See
id. at *3. Mandamus is an appropriate remedy if a trial
court issues an order without jurisdiction. Id.
trial court errs when it amends an indictment on the day of
trial over the defendant's objection, but the error
generally does not render the order amending the indictment
void. See Trevino v. State, 470 S.W.3d 660, 662
(Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) (trial
court erred in amending indictment on date of trial, but
error rendered amendment voidable rather than void); see
also Trejos v. State, 243 S.W.3d 30, 42 (Tex.
App.-Houston [1st Dist.] 2007, pet. ref'd) (holding
indictment not void where it failed to charge murder
victim's name in second paragraph, and trial court erred
by amending indictment to add victim's missing name on
day of trial over defendant's objection). Because the
order is not void, we cannot conclude relator has shown the
trial court failed to perform a ministerial duty to vacate a
void order as he claims. Thus, we conclude relator is not
entitled to mandamus relief.
relator's petition ...