Opinion
No. 04-06-00232-CV
Delivered and Filed: April 26, 2006.
This proceeding arises out of Cause No. A01-335, styled State of Texas v. Robert James Isbell, Jr., pending in the 216th Judicial District Court, Kerr County, Texas, the Honorable Stephen B. Ables presiding.
Petition for Writ of Mandamus Denied.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Relator Robert James Isbell, Jr., an inmate appearing pro se, seeks a writ of mandamus to compel the trial court to rule on his motion for judgment nunc pro tunc addressing pre-sentence jail time credit. If a trial court unnecessarily delays a ruling on a motion for judgment nunc pro tunc addressing jail time credit, a writ of mandamus may issue to compel the trial court to act. Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex.Crim.App. 2004); In re Salinas, No. 04-05-00582-CV, 2005 WL 2369712, at *2 (Tex.App.-San Antonio, September 28, 2005, orig. proceeding). Many factors may be considered in determining whether the trial court has unnecessarily delayed a ruling, including the trial court's actual knowledge of the motion, its overt refusal to act on it, the state of the court's docket, the court's inherent power to control its docket, and the existence of other judicial and administrative matters which must be addressed. Ex parte Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig. proceeding). The relator has the burden of providing a record establishing that his motion has awaited disposition for an unreasonable time. In re Mendoza, 131 S.W.3d 167, 168 (Tex.App.-San Antonio 2004, orig. proceeding).
The mandamus record shows Isbell's motion was filed with the Kerr County District Clerk on November 21, 2005. However, merely filing a motion with the district clerk is not sufficient to impute knowledge of a pending motion to the trial court. In re Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 n. 2 (Tex.App.-Amarillo 2003, orig. proceeding). In his petition filed with this court, Isbell states on February 22, 2006 he "addressed" a letter to the trial judge explaining he was "anxiously awaiting" a ruling on his motion. However, Isbell does not provide this court with a copy of his letter or any other proof the trial court received the letter. Nothing in the mandamus record shows the trial court has been made aware of the motion or has refused to rule on it. See In re Daisy, 156 S.W.3d 922, 924 (Tex.App.-Dallas 2005, orig. proceeding) (granting mandamus relief when record contained several letters from the trial court explaining why relator's motion related to jail time credit would not be ruled on). Nor does the record show the status of the trial court's docket. We decline to hold that the passage of approximately five months constitutes a per se unreasonable delay in ruling on the motion, particularly when we have not received any proof that the trial judge has been made aware of Isbell's motion. See In re Hearn, 137 S.W.3d at 686 (recognizing trial court's failure to act on a recusal motion within eight months was not a per se unreasonable delay, but granting mandamus relief due to other circumstances). Accordingly, the petition for a writ of mandamus is denied. Tex.R.App.P. 52.8(a).