Opinion
14-22-00799-CR 14-22-00800-CR
01-19-2023
IN RE BRANDON RAY MORGAN, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 338th District Court Harris County, Texas Trial Court Cause Nos. 1354996 & 1419351
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
MEMORANDUM OPINION
PER CURIAM
On October 31, 2022, relator Brandon Ray Morgan filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Ramona Franklin, presiding judge of the 338th District Court of Harris County, to rule on his (1) motion to compel production of the complete litigation packet underlying the testing data; (2) motion for extension of time with brief in support; and (3) Covid-19 motion for extension of time with brief and exhibits in support.
To be entitled to mandamus relief, a relator must show that (1) he has no adequate remedy at law for obtaining the relief that he seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). A relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. Id.
As the party seeking relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. See In re Ramos, 598 S.W.3d 472, 473 (Tex. App.―Houston [14th Dist.] 2020, orig. proceeding). In a criminal mandamus proceeding, a relator must provide the appellate court with either a file stamped copy of the motion or other proof that the motion is, in fact, filed and pending in the trial court. In re Gomez, 602 S.W.3d 71, 74 (Tex. App.―Houston [14th Dist.] 2020, orig. proceeding); In re Flanigan, 578 S.W.3d 634, 626 (Tex. App.―Houston [14th Dist.] 2019, orig. proceeding); Henry, 525 S.W.3d at 382.
The copy of the motion to compel production included in the appendix lists cause numbers 1354996 and 1419351 and is certified and bears a file stamp. The copies of the motion for extension of time and Covid-19 motion for extension of time included in the appendix both list cause number 1419351 and are not certified or file-stamped. However, relator has included a copy of a docket sheet from cause number 1419351, which shows that relator's motion for extension of time and Covid-19 motion for extension of time were filed and are pending in the trial court in that cause number.
Relator, however, has not shown that the subject motions were brought to the trial court's attention. Merely filing a motion with a court clerk does not show that the motion was brought to the trial court's attention for a ruling because the clerk's knowledge is not imputed to the trial court. Ramos, 598 S.W.3d at 473.
Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.