Opinion
NUMBER 13-18-00137-CR
03-13-2018
IN RE GUSTAVO LOPEZ MIRELES
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Gustavo Lopez Mireles, proceeding pro se, filed a petition for writ of mandamus in the above cause which he contends that the trial court and the Hidalgo County District Clerk's Office has failed to provide him access to the transcribed record of a purported hearing that took place on April 15, 2002.
I. BACKGROUND
In 2005, this Court affirmed Relator's conviction for murder. See Mireles v. State, No. 13-02-706-CR, 2005 WL 1492078, at *1-7 (Tex. App.—Corpus Christi June 23, 2005, pet. ref'd) (mem. op., not designated for publication). In his present petition for writ of mandamus, Relator contends that he seeks to purchase a copy of a transcript for a hearing that purportedly took place on April 15, 2002 in the 332nd District Court of Hidalgo County, Texas. In support of his petition, Relator attached several exhibits, including: (1) an order dated April 15, 2002 from the 332nd District Court of Hidalgo County ordering the State to produce several pieces of information related to any expert testimony the State intended to introduce at the trial of Relator's underlying murder case; (2) a motion filed December 27, 2017 with the Hidalgo County District Clerk's Office seeking transcripts from the April 15, 2002 hearing; (3) correspondence dated October 22, 2016 from Relator addressed to an Hidalgo County Assistant District Attorney expressing his desire to obtain a copy of the April 15, 2002 hearing transcript; (4) correspondence dated December 5, 2016 from Relator to the Hidalgo County District Clerk's Office regarding Relator's request for the transcript of the hearing; (5) correspondence dated January 23, 2018 from Relator to the presiding judge of the 332nd District Court of Hidalgo County asking the judge to "perform [his] duty" and produce the complained-of trial court transcripts; and (6) correspondence dated January 23, 2018 from Relator to the Hidalgo County District Clerk's Office requesting status on the December 27, 2017 motion.
II. STANDARD OF REVIEW
To be entitled to mandamus relief, relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. See id.
Consideration of a request or motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding). To obtain mandamus relief for the trial court's refusal to rule on a motion, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App. -San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.-Waco 2003, orig. proceeding). The relator must show that the trial court received, was aware of, and was asked to rule on the motion. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.-Amarillo 2003, orig. proceeding).
III. ANALYSIS
First, to the extent that Relator's petition for writ of mandamus seeks relief against the district clerk, we do not have jurisdiction to issue a writ of mandamus against a district clerk, unless the issuance of such writ is necessary to enforce our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a), (b) (West, Westlaw through 2017 1st C.S.); see In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.], orig. proceeding). In the present mandamus, our jurisdiction is not at issue, and accordingly, to the extent that Relator seeks it, mandamus relief is not available against the district clerk.
Second, we examine whether Relator met his burden to show that the trial court received, was aware of, and was asked to rule on the motion. See In re Blakeney, 254 S.W.3d at 661. In a case in which mandamus relief was granted, the Dallas Court of Appeals ordered a trial court to rule on relator's motion for nunc pro tunc judgment, after the record showed "several form letters . . . from the trial court judge to relator giving various reasons why the judge could not or would not rule on his motion." See In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig. proceeding).
A court has a reasonable time within which to perform its duty such as ruling on a motion. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Whether such a period has lapsed is dependent upon the circumstances of each case. Id. Moreover, "no bright-line demarcates the boundaries of a reasonable time period." Id. Its scope is dependent upon a myriad of criteria, not the least of which is the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first. Id. at 228-29.
The record before us shows that Relator's motion was filed near the end of the calendar year on December 27, 2017. Relator sent the trial court one piece of written correspondence to the district clerk's office and the trial court on January 23, 2018—less than a month after the motion was filed—reminding them of the pending motion. Based on this record and the factors set forth in this opinion, we cannot conclude at this time that the trial court has failed to rule within a reasonable time. See id. at 228. Relator bears the obligation to provide us with evidence of the foregoing factors against which we could test the reasonableness of the trial court's alleged delay. See id. at 229. Two pieces of simultaneously sent written correspondence, less than one month after Relator filed the motion at issue, fails to meet the evidentiary burden required to show unreasonableness of time under the facts of this case.
We emphasize that a trial court has "great discretion over its docket." See id. And, while it cannot opt to forever avoid hearing and ruling upon a motion, no litigant is entitled to a hearing and ruling at whatever time he may choose. Id.
IV. CONCLUSION
For the foregoing reasons, after having examined and fully considered the petition for writ of mandamus, the Court is of the opinion that Relator has not shown himself entitled to the relief sought. Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
GINA M. BENAVIDES,
Justice Do not publish.
Tex. R. App. P. 47.2(b). Delivered and filed the 13th day of March, 2018.