Petition for Writ of Mandamus Dismissed, in part, and Denied, in part, and
Memorandum Majority Opinion and Dissenting Opinion filed June 6, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00091-CR
IN RE DARRELL WILLIAMS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
174th District Court
Harris County, Texas
Trial Court Cause No. 1491754
DISSENTING OPINION
Persisting in my view that our duty as judges is to reach a decision on the
merits based on a proper record and that due process and due course of law require
that this court give notice when the original-proceeding record does not comply
with the Texas Rules of Appellate Procedure, I would give relator 45-days’ notice
of involuntary dismissal for failure to comply with Texas Rule of Appellate
Procedure 52.7(a) requiring (1) a 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 (2) a properly authenticated transcript of any relevant testimony
from any underlying proceeding, including any exhibits offered in evidence, or a
statement that no testimony was adduced in connection with the matter
complained. Tex. R. App. P. 52.7(a); see In re Kholaif, 624 S.W.3d 228, 231
(order), mand. dism’d, 615 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2020)
(orig. proceeding); see also Tex. R. App. P. 52.3(k)(1) (necessary contents of
petition); Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (authorizing unsworn
declarations). I would also send relator a copy of the original proceedings checklist
that is on the court’s website: https://www.txcourts.gov/media/1455676/original-
proceedings-checklist-for-website.pdf.
But it is not enough for the court to merely deny fundamental fairness and
allow notice and an opportunity to cure. The court goes further and once again
invokes the heads-I-win-tails-you-lose caselaw from this court that requires
incarcerated individuals to go beyond offering evidence by means such as unsworn
declarations, requiring them instead to provide to this court file-marked copies of
documents from the trial court. See, e.g., In re Henry, 525 S.W.3d 381, 382 (Tex.
App.—Houston [14th Dist.] 2017, orig. proceeding) (corrected op., per curiam). I
strongly disagree with that caselaw. See, e.g., In re Pete, 589 S.W.3d 320, 323–24
(Tex. App.—Houston [14th Dist.] 2019, orig. proceeding) (Spain, J., concurring);
see also MKM Eng’rs, Inc. v. Guzder, No. 14-23-00160-CV, slip op. at 2 (Tex.
App.—Houston [14th Dist.] May 18, 2023, order) (Spain, J., dissenting) (“This
subjective rejection of statements made under penalty of perjury of some appellate
parties is shameful. How do we know who the next Timothy Code or Michael
Morton will be? . . . Beyond the issue of access to photocopiers, it is possible these
individuals may be unable to provide such file-marked copies of documents from
the trial court because none were sent to them by the trial-court clerk.”).
2
Relator has not attempted to comply with Texas Rule of Appellate Procedure
52, so we do not reach the issue of the trial court’s failure to rule. I note, however,
that when a trial court’s failure to rule comes before the court of criminal appeals,
it appears to be the practice of that court to instruct its clerk to send a letter to the
trial court requesting a ruling.1 Unfortunately, the precedent of this court is to
require a relator to provide file-marked copies of documents that may be
unobtainable due to incarceration. 2
I dissent from the court’s failure to provide notice and an opportunity to
cure. I also do not believe that relator’s petition is requesting mandamus relief
directed at the court reporter, so there is no reason for the majority to address that
issue.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.
Publish — Tex. R. App. P. 47.2(b).
This practice suggests to me that the court of criminal appeals will eventually reject this
1
court’s In re Henry caselaw if we do not go en banc and take care of this error ourselves.
This court has not been consistent with its handling of original proceedings in which the
2
relators did not comply with Rule 52. Compare In re Hawkins, No. 14-22-00474-CR, 2022 WL
3973867, at *1 (Tex. App.—Houston [14th Dist.] Sept. 1, 2022, no pet.) with In re Hinton, No.
14-22-00543-CR, 2022 WL 16571199, at *1 (Tex. App.—Houston [14th Dist.] Nov. 1, 2022, no
pet.) and In re Catt, No. 14-22-00583-CV, 2022 WL 11551248, at *1 (Tex. App.—Houston
[14th Dist.] Oct. 20, 2022, no pet.) (Spain, J., concurring). Kholaif is this court’s controlling
precedent, but even if the court ignores that, the potential appearance of subjective
decision-making in the absence of an improper original-proceeding record is unfortunate.
3