Opinion
No. 05-17-01016-CV
08-30-2017
IN RE STEVEN EDWARD VILLNAVE, Relator
Original Proceeding from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-22214-U
MEMORANDUM OPINION
Before Justices Lang, Myers, and Boatright
Opinion by Justice Lang
In 2013, relator waived a jury and pleaded not guilty before the trial court to the charge of felony driving while intoxicated. The trial court found relator guilty and assessed punishment, enhanced by two prior felony convictions, at 50 years in prison. Relator appealed, and this Court affirmed the conviction. Villnave v. State, No. 05-13-00617-CR, 2014 WL 1018349 (Tex. App.—Dallas Feb. 28, 2014, pet. ref'd). In this original proceeding, relator seeks a writ ordering the trial court to grant a motion for resentencing filed on July 10, 2017.
To be entitled to mandamus relief in a criminal matter, a relator must show that he has no adequate remedy at law to redress his alleged harm, and 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) (orig. proceeding). Consideration of a 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). 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 to do so. In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). No litigant is entitled to a hearing at whatever time he may choose, however. In re Chavez, 62 S.W.3d 225, 229 (Tex. App.—Amarillo 2001, orig. proceeding). 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). The circumstances of the case dictate whether the trial court has ruled within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). It is relator's burden to provide the court with a record sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); TEX. R. APP. P. 52.3(k), 52.7(a).
Here, relator's petition does not include a record showing that he properly filed the motion, that he requested a hearing on the motion or asked the trial court to rule, or that the trial court has refused to rule. As such, relator has not established his entitlement to the extraordinary relief of a writ of mandamus. See In re Florence, No. 14-11-00096-CR, 2011 WL 553241, at *1 (Tex. App.-Houston [14th Dist.] Feb. 17, 2011, no pet.) (absent proof that the motions were properly filed, and that the trial court has been requested to rule on the motions but refused to do so, relator has not established his entitlement to the extraordinary relief of a writ of mandamus); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (six-month delay in ruling was not unreasonable). Further, while we have jurisdiction to direct the trial court to exercise its discretion, we are not permitted to tell the trial court how to rule on the motion. Crofts v. Eighth Court of Appeals, 362 S.W.2d 101, 105 (Tex. 1962); Baluch v. Miller, 774 S.W.2d 299, 302 (Tex. App.—Dallas 1989, orig. proceeding); In re ReadyOne Indus., Inc., 463 S.W.3d 623, 624 (Tex. App.—El Paso 2015, orig. proceeding).
Accordingly, we deny the petition for writ of mandamus.
/s/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE 171016F.P05