In re Clinton Lewis Daniels II Appeal from 405th District Court of Galveston County (dissenting memorandum opinion)
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Petition for Writ of Mandamus Denied and Memorandum Majority and Dissenting Opinions filed November 16, 2021. In The Fourteenth Court of Appeals NO. 14-21-00608-CR IN RE CLINTON LEWIS DANIELS II, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 405th District Court Galveston County, Texas Trial Court Cause No. 20CR1464 MEMORANDUM DISSENTING OPINION I dissent because relator does not comply with the following mandatory provisions of Rule 52 regarding a proper original-proceeding record: Tex. R. App. P. 52.3(j) (certification), (k)(1) (necessary contents of appendix); 52.7(a)(1) (sworn or certified copies), (a)(2) (properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or statement that no testimony was adduced in connection with the matter complained); see also Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (unsworn declarations). Generally, I would give notice of the deficiencies with the record and allow relator an opportunity to cure, and if relator did not timely cure the deficiencies, then I would dismiss the petition for want of prosecution without reaching the merits. 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). Here, however, based on the arguments asserted, the deficiencies in relator’s petition are incurable. Accordingly, I would dismiss the petition without allowing an opportunity to cure.1 I respectfully dissent. /s/ Charles A. Spain Justice Panel consists of Justices Jewell, Spain, and Wilson (Wilson, J., majority). Do Not Publish — Tex. R. App. P. 47.2(b). 1 While I disagree with the disposition of this case, I applaud the court for deciding the case for reasons other than petitioner’s purported noncompliance with judicially-created “extra rules” concerning presentment of motions by incarcerated persons. See In re Gomez, 602 S.W.3d 71, 74– 75 (Tex. App.—Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring); In re Pete, 589 S.W.3d 320, 322–324 (Tex. App.—Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring). 2
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