IN RE: Kirby Terrence Embry

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Court of Appeals of Texas, Dallas.

IN RE: Kirby Terrence Embry, Relator

No. 05–16–00073–CV, No. 05–16–00074–CV, No. 05–16–00075–CV, No. 05–16–00076–CV

Decided: January 28, 2016

Before Justices Lang–Miers, Evans, and Whitehill


In this petition for writ of mandamus, relator requests that we order the trial court to rule on his motion requesting the clerk's and reporter's records from his criminal trial and to rule on his motion for a bench warrant.  Relator was convicted of three aggravated robberies and one robbery.  Punishment, enhanced by two prior felony convictions, was assessed at fifty-five years' confinement in each case and was imposed on April 5, 2002.  Embry v. State, No. 05–02–01473–CR, 2002 WL 31166159, at *1 (Tex.App.—Dallas Oct. 1, 2002, no pet.) (mem. op., not designated for publication).  We dismissed relator's direct appeal because his notice of appeal was untimely.  Id. Although relator has already once attempted a direct appeal of his convictions and although any direct appeal at this juncture would be untimely, relator argues that he requires the clerk's and reporter's records so that he can file his direct appeal regarding his convictions.  Relator also suggests in his petition that he may be entitled to habeas corpus relief, but the petition does not demonstrate that he has filed a habeas proceeding.

Relator's petition is not accompanied by an appendix or mandamus record as required by rule 52.3(k) and 52.7 of the Texas Rules of Appellate Procedure and is not certified as required by rule 52.3(j).  The absence of a supporting record is fatal to the petition.  A trial court has a ministerial duty to rule upon properly filed and timely presented motions.  See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App.2007) (orig.proceeding).  But if a trial court does not have jurisdiction to rule on a relator's motions, they cannot be categorized as “properly filed.”  See In re Hogg–Bey, No. 05–15–01421–CV, 2015 WL 9591997, at *1 (Tex.App.—Dallas Dec. 30, 2015, orig. proceeding).  After its plenary jurisdiction expires, a trial court has special or limited jurisdiction to ensure that a higher court's mandate is carried out and to perform other functions specified by statute, such as finding facts in a habeas corpus setting, or determining entitlement to DNA testing.  State v. Patrick, 86 S.W.3d 592, 594 (Tex.Crim.App.2002).  A trial court also has the authority to act on a motion for judgment nunc pro tunc to correct a clerical error in the judgment even after its general jurisdiction over the case has expired.  State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994);  Tex.R.App. P. 23.1.  To determine whether the trial court is required to rule on relator's motions, we must know if there is presently a proceeding pending in the trial court through which it has general or special jurisdiction to rule on relators motions.  The record before the Court does not allow a determination whether any such proceedings that might confer special jurisdiction exist.

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.  Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex.Crim.App.2011) (orig.proceeding) (Alcala, J. concurring).  Relator has not done so in this case.  Accordingly, we deny the petition.  In re Butler, 270 S.W.3d 757, 759 (Tex.App.—Dallas 2008, no pet.).

Opinion by Justice Lang–Miers

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