Opinion issued January 13, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00717-CR
———————————
IN RE JONATHAN JERMAINE RICHMOND, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Jonathan Jermaine Richmond, incarcerated and appearing pro se, has
filed a petition for writ of mandamus, in which he requests that this Court direct the
trial court to “hold an [e]xamining trial in [his] case before the return of an
indictment on [f]alse [a]llegations.”1
1
The underlying case is The State of Texas v. Jonathan Jermaine Richmond, Cause
No. 1746272, in the 182nd District Court of Harris County, Texas, the Honorable
Danilo Lacayo presiding.
In his mandamus petition, relator alleges that “[o]n or about [November 26,
2021], [r]elator’s wife . . . and the complainant . . . talked with [r]elator’s defense
counsel . . . at which time, [c]omplainant . . . recanted her testimony made” to police,
stating that “relator did not commit any injury or harm to her.” Based on the
complainant’s alleged recanting of her testimony, relator argues that the trial court
has “a ministerial duty to order an examining trial and order the case to be
[d]ismissed.” An examining trial puts “the State to its burden of proving that
probable cause exists to believe the accused committed the offense charged against
him.” State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 425 (Tex. Crim. App. 1990).
However, according to relator’s mandamus petition, his court-appointed trial
counsel “did not request an examining trial to correct the [c]omplainant’s
testimony.”
We deny the petition for writ of mandamus.
First, we note that relator’s petition does not comply with the requirements
enumerated in the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(a)–
(h), (k); see also TEX. R. APP. P. 52.7. Among other things, the petition lacks an
appendix and a record. See TEX. R. APP. P. 52.3(k)(1) (requiring petition for writ of
mandamus be filed with appendix that contains “a certified or sworn copy of any
order complained of, or any other document showing the matter complained of”),
52.7(a) (requiring petition for writ of mandamus be filed with record containing “a
2
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 “properly authenticated
transcript of any relevant testimony from any underlying proceeding”). We note that
relator’s petition includes an “Exhibit-A,” which is titled “Defendant’s Motion for
an Examining Trial Pursuant to Ineffective Assistance of Counsel.” While this
motion is dated December 16, 2021, the same day relator’s mandamus petition is
dated, relator’s motion does not include any file-stamp or other indication that it was
properly filed or otherwise presented to the trial court. In the absence of a sufficient
appendix and record, this Court cannot evaluate the merits of relator's
petition. See In re Cole, No. 01-20-00807-CR, 2021 WL 243894, at *1 (Tex.
App.—Houston [1st Dist.] Jan. 26, 2021, orig. proceeding) (mem. op., not
designated for publication); In re McCreary, No. 12-15-00067-CR, 2015 WL
1395783, at *1 (Tex. App.—Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not
designated for publication) (“Without an appendix and a record, we are unable to
determine that [r]elator is entitled to mandamus relief”).
Relator has further failed to establish that the trial court refused to rule on any
motion or request for the relief relator seeks in this Court. See Barnes v. State, 832
S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (denying
mandamus relief where relator did not ask for hearing on motions or take any action
to alert trial court to need to act); O’Connor v. First Court of Appeals, 837 S.W.3d
3
94, 97 (Tex. 1992) (to obtain mandamus relief, relator must show trial court had
legal duty to perform non-discriminatory act, relator made demand for performance,
and trial court refused). As noted above, while relator’s petition to this Court
includes a pro se motion for an examining trial, there is no indication that motion
was properly filed or presented to the trial court. Further, even assuming relator’s
motion was properly filed and presented to the trial court, the motion is dated
December 16, 2021, the same date as relator’s mandamus petition. See In re Chavez,
62 S.W.3d 225, 228–29 (Tex. App.—Amarillo 2001, orig. proceeding) (trial court
afforded “reasonable time” to perform ministerial duty of ruling on properly
presented motion)
We deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8.
All pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
4