Opinion
14-25-00144-CR
03-11-2025
IN RE JEREMY DAVID OLUMA, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 240th District Court Fort Bend County, Texas Trial Court Cause No. 24-DCR-107058
Panel consists of Chief Justice Christopher, Justices Wise and Wilson.
MEMORANDUM OPINION
PER CURIAM
On February 28, 2025, relator Jeremy David Oluma 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 Surendran K. Pattel, presiding judge of the 240th District Court of Fort Bend County, to dismiss the interference with child custody charge against relator. See Tex. Pen. Code Ann. § 25.03. In addition, relator asks this court to compel the trial court to rule on its December 23, 2024 "Motion for ADA Accommodation for Virtual Appearances." For the reasons detailed below, we deny relator's petition for writ of mandamus.
Standard of Review
To be entitled to mandamus relief, a relator must show (1) that it has no other adequate legal remedy; and (2) the act sought to be compelled is purely ministerial. In re State ex rel. Ogg, No. 14-20-00793-CR, 2021 WL 2153297, at *1 (Tex. App.-Houston [14th Dist.] May 27, 2021, orig. proceeding); see In re Yeager, 601 S.W.3d 356, 358 (Tex. Crim. App. 2020) (orig. proceeding). A ministerial act does not involve the use of judicial discretion; instead, a ministerial act must be positively commanded and so plainly prescribed under the law as to be free from doubt. State ex rel. Ogg, 2021 WL 2153297, at *1; see In re Harris, 491 S.W.3d 332, 334-35 (Tex. Crim. App. 2016) (orig. proceeding).
Dismissal of charges
Relator first seeks this court to compel the trial court to dismiss the pending interference with child custody charge against relator, as relator claims the charge is based on void August 29, 2022 child custody orders. See Tex. Pen. Code Ann. § 25.03.
Mandamus is appropriate if the trial court acts beyond its statutory authority. State ex rel. Ogg, 2021 WL 2153297, at *1; see State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984) (orig. proceeding); see also State ex rel. Hury v. Morgan, 601 S.W.2d 717, 718 (Tex. Crim. App. 1980) (orig. proceeding) (granting mandamus relief because trial court was without authority to enter order and therefore it was void). When the subject order is void, the relator need not show that it does not have an adequate remedy at law, and mandamus relief is appropriate. State ex rel. Ogg, 2021 WL 2153297, at *1; see In re Keeling, 227 S.W.3d 391, 395 (Tex. App.-Waco 2007, orig. proceeding).
"There is no general authority, written or unwritten, inherent or implied, which would permit a trial court to dismiss a case without the prosecutor's consent." Irving v. State, 879 S.W.2d 220, 221 (Tex. App.-Houston [14th Dist.] 1994), aff'd, 922 S.W.2d 959 (Tex. Crim. App. 1996); see State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991). However, a trial court has implicit power to dismiss a case without the State's consent if the dismissal is authorized by a constitutional provision, a statute, or through common law. Irving, 879 S.W.2d at 221. For example, a court can dismiss a case without the State's consent when an accused has been denied a speedy trial, when an accused is detained and no charging instrument is presented, or when there is a defect in the charging instrument. Id. In this case, there is no showing the prosecutor consented to the dismissal, and we can find no constitutional provision, statute or law which would authorize it. Id. at 221-22. Thus, this court cannot compel the trial court to dismiss the charge pending against relator through a writ of mandamus.
Moreover, this court lacks authority to issue a writ of mandamus against a district attorney or assistant district attorneys. In re Cole, No. 01-20-00785-CR, 2021 WL 126273, at *2 (Tex. App.-Houston [1st Dist.] Jan. 14, 2021, orig. proceeding); see Garner v. Gately, 909 S.W.2d 61, 62 (Tex. App.-Waco 1995, orig. proceeding); see also In re Mays, No. 11-14-00310-CR, 2014 WL 6603371, at *1 (Tex. App.-Eastland Nov. 20, 2014, orig. proceeding) (mem. op., not designated for publication). This court has jurisdiction to issue a writ of mandamus against "a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district." See Tex. Gov't Code Ann. § 22.221(b). In addition, this court has jurisdiction to issue a writ of mandamus against "a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district" or "an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code, in the court of appeals district for the judge who appointed the associate judge." Tex. Gov't Code Ann. § 22.221(c). Further this court can "issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court." Tex. Gov't Code Ann. § 22.221(a). Because relator does not allege that the prosecutors in the District Attorney's office are interfering with this court's jurisdiction, we lack jurisdiction over the prosecutors. See In re Richardson, No. 14-04-00622-CV, 2004 WL 1515918, at *1 (Tex. App.- Houston [14th Dist.] July 8, 2004, orig. proceeding).
Failure to rule
Relator next argues the trial court abused its discretion by failing to rule on its December 23, 2024 "Motion for ADA Accommodation for Virtual Appearances."
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 Morris, No. 14-22-00857-CR, 2023 WL 2179704, at *1 (Tex. App.- Houston [14th Dist.] Feb. 23, 2023, orig. proceeding); see In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). For relator to be entitled to mandamus relief, the record must show (1) the motion was filed and brought to the attention of the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the motion within a reasonable time after the motion was submitted to the court for a ruling or after the party requested a ruling. Morris, 2023 WL 2179704, at *1; see In re Gomez, 602 S.W.3d 71, 73 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding).
As the party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. Morris, 2023 WL 2179704, at *1; see also Tex. R. App. P. 52.7(a)(1) (relator must file with the mandamus petition "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"). To establish that the motion was filed, the relator must provide either a file-stamped copy of the motion or other proof that the motion in fact was filed and is pending before the trial court. Id. 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. Id.; see In re Ramos, 598 S.W.3d 472, 473 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding).
Relator has not provided this court with a mandamus record to demonstrate that relator has brought a pending motion to the attention of the respondent-judge for a ruling. Mere filing is insufficient because the clerk's knowledge is not imputed to the trial judge. Morris, 2023 WL 2179704, at *1; see Ramos, 598 S.W.3d at 473. The respondent-judge is not required to consider a motion that has not been called to the trial court's attention by proper means. Morris, 2023 WL 2179704, at *1; see Henry, 525 S.W.3d at 382. Even if relator showed that his motion is properly pending in the trial court and the trial court was made aware of it, relator has not shown that it has been pending for an unreasonable period of time. Id. In sum, relator has not made the requisite showing. Morris, 2023 WL 2179704, at *1; see Gomez, 602 S.W.3d at 73.
Thus, relator has not established he is entitled to mandamus relief. Thus, the petition for writ of mandamus is denied.