Jeno Dewayne Jackson v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00088-CR

______________________________

JENO DEWAYNE JACKSON, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court

Red River County, Texas

Trial Court No. CR00468

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Jeno Dewayne Jackson attempts to appeal his conviction for aggravated sexual assault of a child. Jackson pled guilty and was sentenced to thirty years' imprisonment. Jackson's sentence was imposed October 25, 2005. His notice of appeal was filed May 8, 2006. We received the clerk's record May 23, 2006, and the supplemental clerk's record containing Jackson's notice of appeal was received May 30, 2006. The issue before us is whether Jackson timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

            A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2(a) prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. The record does not contain any motion for new trial. The last date Jackson could timely file his notice of appeal was November 28, 2005, thirty days after the day the sentence was imposed in open court. See Tex. R. App. P. 26.2(a)(1). Further, no motion for extension of time was filed in this Court within fifteen days of the last day allowed for filing the notice of appeal.

            Jackson has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

 

                                                                    Jack Carter

                                                                        Justice

Date Submitted:          May 30, 2006

Date Decided:             May 31, 2006

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00161-CR

                                                ______________________________

 

 

 

                                             IN RE:  STEPHEN CLAY JOHNSTON

 

 

 

                                                                                                  

 

                                                                                                                            

                                                     Original Mandamus Proceeding

 

                                                                                                  

 

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                                             

                                                                             

                                                      MEMORANDUM OPINION

 

            Stephen Clay Johnston has filed a petition for writ of mandamus in which he asks this Court to order the 6th Judicial District Court of Lamar County, Texas, to rule on several motions^[1] he filed with the District Clerk of Lamar County.  The motions were filed on the eleventh or fifteenth of August, 2011.  Johnston argues that the trial court has failed or refused to fulfill its ministerial duty to consider and rule on his motions. 

            We deny the petition for writ of mandamus because the trial court has not had a reasonable amount of time in which to rule on Johnston’s motions.

            We may grant a petition for writ of mandamus when the relator shows there is no adequate remedy at law to redress the alleged harm and that the act to be compelled is purely ministerial.  Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (per curiam) (orig. proceeding).  When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act and mandamus may issue to compel the trial court to act.  In re Kleven, 100 S.W.3d 643, 644 (Tex. App.—Texarkana 2003, orig. proceeding); see also Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding).

            A trial court has a ministerial duty to consider and rule on a motion brought to the court’s attention within a reasonable amount of time.  In re Bonds, 57 S.W.3d 456, 457 (Tex. App.—San Antonio 2001, orig. proceeding).  A trial court’s refusal to rule on a pending motion within a reasonable amount of time constitutes a clear abuse of discretion.  See In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding) (citing In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.—Texarkana 2005, orig. proceeding)).  Whether a reasonable time has lapsed depends on the circumstances of each case.  In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding).  “Determining what time period is reasonable is not subject to exact formulation. . . . Moreover, no bright line separates a reasonable time period from an unreasonable one.”  Id. (citation omitted) (citing Keeter, 134 S.W.3d at 253).  Periods of eighteen months and thirteen months have been held to be too long for a trial court not to rule.  In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265 (Tex. Civ. App.—Tyler 1976, orig. proceeding) (per curiam).

            In this case, barely one month has elapsed since the filing of the motions in question.  We find that Johnston has made no showing that the trial court has had a reasonable amount of time in which to rule on his motions.  See Blakeney, 254 S.W.3d at 662. 

            Accordingly, we deny his petition for writ of mandamus.

 

 

 

 

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

 

Date Submitted:          September 15, 2011

Date Decided:             September 16, 2011

 

Do Not Publish

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^[1]Attached to Johnston’s petition are file-stamped copies of a request for appeal bond, request for findings of fact and conclusions of law, motion for production of documents, request for appointment of counsel, motion for evidentiary hearing, supplemental motion for production of documents, and a motion for bench warrant.