Opinion
No. 05-18-00232-CV
03-12-2018
IN RE DENNIS JEROME PIERCE, Relator
Original Proceeding from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-0224969-Q
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Stoddart
In this original proceeding, relator complains that the trial court has not ruled on a request for judgment nunc pro tunc. Relator's petition is not properly certified as required by rule 52.3(j) of the rules of appellate procedure and does not include an appendix and record containing the necessary contents set out in rule 52.3(k)(1) and rule 52.7(a). TEX. R. APP. P. 52.3(j), 52.3(k)(1)(a), 52.7(a). Although these deficiencies alone constitute sufficient reasons to deny mandamus relief, in the interest of judicial economy we address the petition.
To establish a right to mandamus relief in a criminal case, the relator must show that the trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). Further, as the party seeking relief, the relator has the burden of providing the Court with a sufficient mandamus record to establish his right to mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
A trial court has a ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed and timely presented, a motion must be presented to a trial court at a time when the court has authority to act on the motion. See In re Hogg-Bey, No. 05-15-01421-CV, 2015 WL 9591997, at *1-2 (Tex. App.—Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not designated for publication). A trial court has a reasonable time within which to consider a motion and to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding).
Here, the mandamus record does not include a certified or sworn copy of the trial court's docket sheet or other proof that establishes relator filed the motion for judgment nunc pro tunc, and requested a hearing and/or ruling on the motion, and establishes the trial court has failed to act on relator's requests within a reasonable time. TEX. R. APP. P. 52.3(k)(1)(a), 52.7(a). Relator's petition does not include a record showing that he is entitled to mandamus relief. See In re Harris, No. 14-07-231-CV, 2007 WL 1412105, at *1 (Tex. App.—Houston [14th Dist.] May 15, 2007, orig. proceeding) (mem. op.) (holding relator not entitled to mandamus relief when record did not show relator alerted trial court of motion by setting it for submission or hearing). Accordingly, we deny relator's petition for writ of mandamus.
/Craig Stoddart/
CRAIG STODDART
JUSTICE 180232F.P05