Opinion
No. 05-16-00043-CV No. 05-16-00044-CV No. 05-16-00045-CV No. 05-16-00046-CV
01-26-2016
IN RE SENRICK WILKERSON, Relator
Original Proceeding from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1001182-J, F-1001183-J, F-1001184-J, F-1001185-J
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Whitehill
Opinion by Justice Lang-Miers
In this petition for writ of mandamus, relator complains that the trial court has not ruled on his motion for judgment nunc pro tunc and motion to convene a court of inquiry. We deny the petition.
The petition is unsupported by a 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). Although these deficiencies alone constitute sufficient reason to deny mandamus relief, the clerk's record in a recent series of appeals concerns the same motions. See Wilkerson v. State, 05-15-01471-CR, 2015 WL 9412839, at *1 (Tex. App.—Dallas Dec. 22, 2015, no. pet. h.). In the interest of judicial economy, by separate order, we have directed the clerk of court to transfer the record from those appeals to their corresponding mandamus case. --------
Relator was convicted of sexual performance by a child (F10-01183-J) and sexual assault of a child (F10-01184-J). We affirmed these convictions on direct appeal. See Wilkerson v. State, No. 05-11-00061-CR, 2012 WL 2988723 (Tex. App.-Dallas, pet. ref'd). According to relator's pro se "petition for grand jury minutes," included in the record, he was charged with sexual performance of a child in trial court cause number F10-01182-J and compelling prostitution in trial court cause number F10-01185-J. Each of these indictments was dismissed on the State's motion. Wilkerson v. State, No. 05-15-01471-CR, 2015 WL 9412839, at *1 (Tex. App.—Dallas Dec. 22, 2015, no. pet. h.).
Mandamus relief is appropriate in a criminal case only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision. In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (orig. proceeding). A trial court has a ministerial duty to rule upon a properly filed and timely presented motion. 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 a court may act only if permitted to do so by constitutional provision, statute, or common law, or if the power to take the action arises from an inherent or implied power vested in the court. State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991). The trial court lacks such authority here.
As we noted in relator's recent appeal, the motions for judgment nunc pro tunc do not seek correction of a clerical error but rather seek to have his convictions set aside as void. The motion for a court of inquiry similarly attacks the validity of relator's criminal conviction. Because both motions are, in substance, applications for post-conviction habeas corpus relief, the trial court does not have jurisdiction to grant the relief requested by the motions. In re Smith, 366 S.W.3d 268, 270-71 (Tex. App.—Tyler 2012, orig. proceeding); see also Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex. Crim. App. 2000) ("[I]t is the substance of the motion that governs, not the title."). Only the court of criminal appeals has jurisdiction to grant post-conviction habeas corpus relief. Ex parte Williams, 561 S.W.2d 1, 2 (Tex. Crim. App. 1978) (orig. proceeding).
Because the trial court does not have jurisdiction to rule on 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). Moreover, because the trial court does not have jurisdiction to rule on the motions, it logically follows that it does not have a ministerial duty to do so. Smith, 366. S.W.3d at 270-71. Accordingly, relator has not shown that he is entitled to mandamus relief.
We deny the petition.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 160043F.P05