Opinion
No. 04-18-00004-CR
01-24-2018
IN RE Robert MARTINEZ
MEMORANDUM OPINION
Original Mandamus Proceeding PER CURIAM Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice PETITIONS FOR WRIT OF MANDAMUS DENIED
This proceeding arises out of Cause Nos. 587693 and 307125, styled The State of Texas v. Robert Martinez, pending in the County Court at Law No. 5, Bexar County, Texas, the Honorable John Longoria presiding.
Relator, Robert Martinez, filed two petitions for writ of mandamus in which he complains about not receiving records in connection with appeals he has filed in this court.
Relator's January 3, 2018 petition for writ of mandamus arises from trial court cause number 587693. Attached to relator's January 3, 2018 petition is an order signed by the trial court on June 23, 2016 granting trial counsel's "Motion for Discovery." Also attached is a Motion for Transcript filed by trial counsel on October 3, 2017. Relator alleges the trial court granted this motion on or about October 5, 2017. Finally, relator attached a copy of a pro se "Motion to Obtain Transcript" in which he again asks for the records. In his January 3, 2018 petition, relator asserts the records requested in these motions have not been provided to him, and he asks that the trial court's orders "be adhered [to] and relator be provide[d] with discovery as ordered."
To be entitled to a writ of mandamus in a criminal case, a relator must demonstrate (1) he has no adequate remedy at law and (2) what he seeks to compel is a ministerial act. See In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). Nothing in the record attached to relator's January 3, 2018 petition indicates whether trial counsel received the requested records, and it appears relator's complaint is that relator himself has not received the records. Therefore, relator has not shown that what he seeks to compel is a ministerial act. We also note relator has a related pro se appeal pending before this court in appellate cause number 04-17-00824-CR arising from trial court cause number 587693. To the extent relator requests the records for the purpose of pursuing his appeal in appellate cause number 04-17-00824-CR, he should file the appropriate request with the court reporter and/or district clerk; see TEX. R. APP. P. 34; or the appropriate motion in his pending appeal. Therefore, it appears relator has an adequate remedy at law.
Relator's January 4, 2018 petition for writ of mandamus arises from trial court cause number 307125. Attached to relator's January 4, 2018 petition is a copy of relator's pro se "Repeated Good Faith Request/Motion to Obtain Transcripts for Hearing Dates Feb. 4, 14, July 8, 14, Dec. 19, 14 Necessary for Proper Appellate Review in the Higher Courts to Include the 4th Court of Appeals." This motion does not bear a file-stamp by the district clerk, but relator alleges he mailed the motion on November 25, 2017 and the trial court has since refused to rule on the motion. In his January 4, 2018 petition, relator asks this court to order the trial court to rule on his motion.
To be entitled to mandamus relief compelling a trial court to rule on a properly filed motion, a relator must establish 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 period of time. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). Neither the motion nor any of the other documents attached to relator's January 4, 2018 petition demonstrate the trial court was asked to rule on a properly-filed motion, and failed or refused to rule on the motion within a reasonable period of time. We also note relator has a related pro se appeal pending before this court in appellate cause number 04-17-00822-CR arising from trial court cause number 307125. To the extent relator requests the records for the purpose of pursuing his appeal in appellate cause number 04-17-00822-CR, he should file the appropriate request with the court reporter and/or district clerk; see TEX. R. APP. P. 34; or the appropriate motion in his pending appeal. Therefore, it appears relator has an adequate remedy at law.
Because relator has not shown he is entitled to a writ of mandamus, we deny both petitions for writ of mandamus.
PER CURIAM Do not publish