Opinion
NO. 12-12-00043-CR
05-23-2012
In re: MICHAEL ALLYN KENNEDY, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
In this original mandamus proceeding, Relator Michael Allyn Kennedy complains that the trial court has failed to rule on his motion for appointment of appellate counsel and also complains about the reading of the indictment. We deny the petition.
FAILURE TO RULE
To obtain a writ of mandamus compelling the trial court to consider and rule on a motion, a relator must establish that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). Generally, a trial court has a nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas, No. 12-05-00261-CV, 2005 WL 2155244, at *4 (Tex. App.—Tyler Sept. 7, 2005, orig. proceeding) (mem. op.). But a trial court cannot be expected to consider a motion not called to its attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Merely filing a motion with the district clerk does not impute the clerk's knowledge of the filing to the trial court. Id. at 228. Therefore, it is incumbent upon the relator to establish that the motion has been called to the trial court's attention. See id. Relator has not met this burden. Consequently, Relator has not established that mandamus is available for the trial court's failure to rule on Relator's motion for appointment of appellate counsel.
READING OF THE INDICTMENT
Texas Rule of Appellate Procedure 52.3 identifies certain information a petition for writ of mandamus must include. To comply with Rule 52.3, one seeking mandamus relief must provide the court with clear and concise argument for the contentions made with citation to authority and the record or appendix. TEX. R. APP. P. 52.3(h). This duty entails more than proffering mere conclusions. In re Kuhler, 60 S.W.3d 381, 384 (Tex. App.-Amarillo 2001, orig. proceeding). Rather, the relator must provide substantive analysis or discussion of the facts and authorities relied upon. Id. The relator must also provide an appendix that includes a certified or sworn copy of any order complained of, or any other document showing the matter complained of. TEX. R. APP. P. 52.3(k)(1)(A). And finally, the relator must furnish a record that includes a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding. TEX. R. APP. P. 52.7(a)(1).
Here, Relator's complaint concerning the reading of the indictment is difficult to parse. Specifically, we cannot determine whether he is complaining that the trial court did not read the indictment at the beginning of his second sentencing hearing or that the trial court reporter noted in the record that the indictment had been read, but did not transcribe the reading of the indictment. Further, Relator has not stated the facts pertaining to his complaint or made a clear and concise argument, including citation to relevant authority and the record or appendix. Nor has he included any documents in the appendix to his mandamus petition from which we can verify the nature of his complaint. Consequently, we cannot conclude that he is entitled to mandamus relief relating to the reading of the indictment.
DISPOSITION
Relator has not shown that he is entitled to mandamus relief. Accordingly, his petition for writ of mandamus is denied.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.