Opinion
No. 05-19-01538-CV
02-25-2020
IN RE STEVEN EDWARD VILLNAVE, Relator
Original Proceeding from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-22214-U
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Evans
Opinion by Justice Evans
In this original proceeding, Steven Edward Villnave has filed a petition for writ of mandamus requesting that the Court compel the trial court to rule upon a motion for nunc pro tunc judgment he contends he filed on September 28, 2019. Alternatively, relator requests the Court correct a "clerical error" in the trial court's judgment assessing court costs. We deny relief.
A petition seeking mandamus relief must contain a certification stating that the relator "has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record." TEX. R. APP. P. 52.3(j). The Court requires relator's certification to state substantially what is written in rule 52.3(j). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding). Relator's petition does not contain a certification and thus is not properly certified under rule 52.3(j). See id.
Furthermore, rules 52.3(k)(1)(A) and 52.7(a)(1) require relator to file an appendix with his petition that contains a certified or sworn copy of any order complained of, any other document showing the matter complained of, and every document that is material to the relator's claim for relief that was filed in any underlying proceeding. TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
The motion to enter a nunc pro tunc judgment relator has filed with his petition is not a certified or sworn copy and thus is not properly authenticated under the rules of appellate procedure. Documents become sworn copies when they are attached to an affidavit or to an unsworn declaration conforming to section 132.001 of the Texas Government Code. See TEX. GOV'T CODE ANN. § 132.001; Butler, 270 S.W.3d at 759; In re Taylor, 28 S.W.3d 240, 245, (Tex. App.—Waco 2000, orig. proceeding), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). The affidavit or unsworn declaration must affirmatively show it is based on relator's personal knowledge. See Butler, 270 S.W.3d at 759. The affidavit or unsworn declaration is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them. See id. An affidavit or unsworn declaration would comply with the rule if it stated, under penalty of perjury, that the affiant has personal knowledge that the copies of the documents in the appendix are true and correct copies of the originals. See id.
To show his entitlement to mandamus relief compelling a trial court to rule on a 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 within a reasonable period of time. 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). The uncertified and unsworn copy of the motion relator has filed does not bear a file mark or any indication that it was ever actually filed with the trial court. Relator has not filed any documents showing he brought the matter of the pending motion to the trial court's attention or reminded the trial court that he was awaiting a ruling. Additionally, relator has not provided a certified copy of the trial court's docket sheet showing what he has filed.
Although it is an unofficial source, we note that the trial court's online docket sheet for cause no. F13-22214-U does not show relator filed any motions in 2019.
As the party seeking relief, relator bears the burden to provide 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. proceeding). Without an appendix containing certified or sworn copies of relevant documents, including the motion, requests to rule upon the motion, and a copy of the trial court's docket sheet showing the status of relator's motion before the trial court, relator has not provided a sufficient record to show his entitlement to mandamus relief against the trial court. See Prado, 522 S.W.3d 1, 2; Butler, 270 S.W.3d at 759.
Relator next contends that because the trial court did not orally pronounce the assessment of court costs during sentencing and support them with a bill of costs, the inclusion of costs in the judgment is a clerical error which this Court may correct. To support his contention, relator has attached copies of the trial court's judgment and a brief excerpt from the record filed in his direct appeal. See Villnave v. State, No. 05-13-00617-CR, 2014 WL 1018349 (Tex. App.—Dallas Feb. 28, 2014, pet. ref'd) (not designated for publication).
Because court costs are not punitive, they need not be included in the oral pronouncement of sentence as a precondition for including them in the trial court's judgment. Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). Thus the presence of the court costs in the judgment without an oral pronouncement of court costs in the record does not constitute a clerical error subject to correction. See Weir, 278 S.W.3d at 367. See also In re Cherry, 258 S.W.3d 328, 334 (Tex. App.—Austin 2008, orig. proceeding) (discussing difference between clerical error subject to correction and error of judicial reasoning not subject to nunc pro tunc correction).
Moreover, criminal judgments are required to assess costs against convicted defendants. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Unless a defendant challenges the amount or imposition of costs, a bill of costs need not be in the record to support the costs assessed. See id. at 388. Relator may challenge court costs imposed in the judgment on direct appeal or in a motion to correct costs filed within one year of rendition of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 103.008; Johnson, 423 S.W.3d at 390. In this case, the judgment assessing court costs was entered in 2013. The April 29, 2013 order to withdraw funds from appellant's inmate trust account is included in the clerk's record from his direct appeal. Relator filed his appellate brief on October 2, 2013 and did not raise an issue of the propriety of assessing costs. Thus, relator had a full opportunity to contest the assessment of court costs on direct appeal and chose not to pursue that available remedy. Mandamus is not available where the relator had an adequate legal remedy to contest the assessment of costs, but chose not to timely exercise it. See In re Pannell, 283 S.W.3d 31, 36 (Tex. App.—Fort Worth, orig. proceeding). See also Perez v. State, 424 S.W.3d 81, 87 (Tex. Crim. App. 2014) (Alcala, J., concurring) (opining mandamus relief not available for appellant objecting to costs who had not pursued adequate remedy by appeal).
Finding no basis for relief, we deny relator's petition for writ of mandamus.
/David Evans/
DAVID EVANS
JUSTICE 191538F.P05