DENIED and Opinion Filed April 21, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00214-CV
IN RE ROBERT ARTHUR MOSES, Relator
Original Proceeding from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-81377-2015
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Breedlove
Opinion by Justice Breedlove
In this original proceeding, Robert Arthur Moses has filed a “Notice of
Appeal” to compel the current judge of the trial court that convicted him to grant a
motion to recuse herself from his case for failing to rule on a pretrial application for
writ of habeas corpus he filed in 2015. Because relator’s “Notice of Appeal” seeks
what is properly characterized as mandamus relief, we construe the document as a
petition for writ of mandamus.
The certificate of service on relator’s motion to recuse indicates relator mailed
it to the trial court on February 14, 2023. The trial court’s online docket sheet on
Collin County’s website shows entry of an order on March 2, 2023, with a comment
line: “Order of Referral on Motion to Recuse.” On March 28, 2023, the online docket
sheet shows a second order entered with the comment line “Order Denying Motion
to Recuse.” Thus, unless relator can show the trial court had a nondiscretionary,
ministerial duty to grant the motion to recuse, this case appears to be moot. See In
re Johnson, 599 S.W.3d 311, 311 & n.1 (Tex. App.—Dallas 2020, orig. proceeding)
(dismissing as moot mandamus petition because trial court’s online docket sheet
showed relator had obtained requested relief.); see also State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.
2007) (explaining general rule that mandamus relief may not be used to compel the
trial court to rule a certain way on pending motion unless relator has a clear right to
relief sought).
We conclude relator cannot show he has a clear right to relief. As a petition
for writ of mandamus, relator’s “notice of appeal” does not satisfy the rules of
appellate procedure in that it is not styled or structured as a petition, lacks a proper
case style, table of contents, index of authorities, statement of the case, a list of issues
presented, and a proper certification. See TEX. R. APP. P. 52.1, 52.3.
Relator bears the burden to provide the Court with a sufficient record to
establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding). The record must contain certified or sworn copies of all
relevant orders and material documents that show the matter complained of or that
were filed in the underlying proceeding. See TEX. R. APP. P. 52.3(k)(1)(A),
52.7(a)(1).
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Relator’s petition is supported by only one document—his motion to recuse
the trial court judge. There is no copy of the pretrial writ relator contends the trial
court has failed to adjudicate nor are there any documents providing context for
relator’s assertion that the trial court has a ministerial duty to grant his motion.
Relator’s failure to properly certify and support his petition is a sufficient ground to
deny his petition. See In re Butler, 270 S.W.3d 757, 758–59 (Tex. App.—Dallas
2008, orig. proceeding).
Perhaps to buttress his meager record, relator has filed a motion requesting we
take judicial notice of procedural events that happened before his trial. Relator asks
us to take judicial notice that the State failed to bring him before a magistrate
following his arrest in 2015, that no magistrate determined his arrest was lawful and
based on probable cause, that relator filed a pretrial application for writ of habeas
corpus under code of criminal procedure article 11.08, and that the trial court failed
to rule on his pretrial writ application. Relator contends such matters are appropriate
for judicial notice because they are “known within this court’s territorial jurisdiction
as by cause no. 219-81377-2015.”
None of these matters are proper subjects for judicial notice in this proceeding.
See Johnson, 599 S.W.3d at 311 n.1 (explaining use of judicial notice in mandamus
proceedings); See also Walker, 827 S.W.2d at 837 (requiring relator to provide
record establishing right to mandamus relief); TEX. R. APP. P. 52.3, 52.7. We deny
the motion.
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Even with a more complete record, relator cannot show he is entitled to
mandamus relief. Relator was convicted of murder in a jury trial and sentenced to
life in prison. This Court affirmed his conviction. See Moses v. State, No. 05-16-
01391-CR, 2018 WL 4042359 (Tex. App.—Dallas Aug. 23, 2018, pet. ref’d) (mem.
op., not designated for publication). The Texas Court of Criminal Appeals refused
his petition for discretionary review. Our mandate issued on January 24, 2019.
Because relator was convicted, sentenced to prison, and his conviction is final,
any post-conviction habeas relief must be obtained under the procedures set forth in
code of criminal procedure article 11.07 and come from the court of criminal
appeals. See Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the
Eighth Judicial Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); see also In re
Dunsmore, No. 01-22-00943-CR, 2023 WL 138876, at *2 (Tex. App.—Houston [1st
Dist.] Jan. 10, 2023 orig. proceeding) (mem. op., not designated for publication)
(after final conviction, a relator may not apply to appellate court for mandamus relief
asserting trial court has ruled improperly on motion for recusal). Whatever
ministerial duty the trial court owed to relator has been satisfied by the order of
referral and order denying recusal. See Dunsmore, 2023 WL 138876, at *2.
To the extent that relator’s document could be considered a premature notice
of appeal anticipating an order denying his motion, we have no jurisdiction to review
this type of post-conviction order. Appeals in criminal cases must be specifically
authorized by statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim.
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App. 2011). Generally, we may consider criminal appeals only after the trial court
enters a final judgment. See TEX. CODE CRIM. PROC. ANN. art. 44.02; Abbott v. State,
271 S.W.3d 694, 697 n.8 (Tex. Crim. App. 2008). We are not aware of any authority
allowing relator to appeal the denial of a post-conviction order denying recusal. See
Abbott, 271 S.W.3d at 697; see also Scott v. State, No. 11-17-00015-CR, 2017 WL
469374, at *1 (Tex. App.—Eastland Feb. 2, 2017, no pet.) (mem. op., not designated
for publication) (dismissing appeal from order denying motion to recuse judge from
post-conviction proceedings).
Because relator has not shown he is entitled to mandamus relief, we deny his
petition for writ of mandamus. See TEX. R. APP. P. 52.8(a).
/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
230214F.P05
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