IN THE
TENTH COURT OF APPEALS
No. 10-06-00285-CV
In re Chad Davis
Original Proceeding
MEMORANDUM Opinion
Relator Chad Davis seeks a writ of mandamus, complaining that Respondent, the Honorable Steve Smith, Judge of the 361st District Court, has not ruled on his two petitions for expunction that were filed on June 21, 2006, approximately ninety days before the petition for writ of mandamus was filed. See generally Tex. Code Crim. Proc. Ann. arts. 55.01-.06 (Vernon Supp. 2006).
A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex. App.—San Antonio 1998, orig. proceeding). Whether the judge has acted within a reasonable period of time depends on the circumstances of the case. See Martinez Ramirez, 994 S.W.2d at 684. But that duty generally does not arise until the movant has brought the motion to the trial judge’s attention, and mandamus will not lie unless the movant makes such a showing and the trial judge then fails or refuses to rule within a reasonable time. See Chavez, 62 S.W.3d at 228.
In response to Davis’s petition for writ of mandamus, the State, citing In re Ford, asserts that Davis has not shown that he has brought his expunction petitions to the trial judge’s attention.[1] See In re Ford, 2004 WL 2237926 (Tex. App.—San Antonio Oct. 6, 2004, orig. proceeding) (mem. op.) (holding that movant had not shown he had brought expunction petition to trial judge’s attention).
We disagree that a party filing an expunction petition must bring it to the trial court’s attention. The expunction statute imposes an independent duty on the trial court to set a hearing on the petition: “The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other entity named in the petition reasonable notice of the hearing. . . .”[2] Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (emphasis added).
We conclude, however, that under the circumstances of these expunction cases, we cannot say that ninety days is a reasonable time per se to require a trial court to have set for hearing a petition for expunction. See Ford, 2004 WL 2237926 (implying that two months since filing of expunction petition was not a reasonable time for requiring the trial court to have acted). Thus, we deny the petition for writ of mandamus.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the judgment only, noting he voted to deny the petition when the majority requested a response. Further, Chief Justice Gray notes that the time between when the expunction petition was filed and the mandamus was filed did not change as a result of requesting a response.)
Petition denied
Opinion delivered and filed October 25, 2006
[OT06]
[1] The State also asserts that Davis is not entitled to mandamus relief because his expunction petitions are defective because they are not verified. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b) (stating the petition must be verified). We agree that the expunction petitions are not verified (and may have other defects pointed out by the State), but that is not a ground for failing or refusing to set them for hearing as statutorily required.
[2] Moreover, each of Davis’s transmittal letters that accompanied his expunction petitions requested the district clerk to “bring it [his petition] to the attention of the court” and to inform him “when the Court sets this motion for a hearing.” While the statute suffices to require the trial court to set a hearing on an expunction, we would find that Davis’s requests (Davis, a state prison inmate, is proceeding pro se) in his two letters also suffice to have brought the matters to the trial court’s attention.
font-family: 'CG Times', serif"> In conducting a factual-sufficiency review, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The jury is the judge of the facts and we will defer to the jury, finding the evidence factually insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407.
Gibson made contradicting statements about whether Carter or McQuirter handed the drugs to her. Relying on this contradiction, Carter argues that the verdict is contrary to the weight of the evidence. He asserts that, because Gibson testified that McQuirter actually handed the drugs to her, the evidence does not support his conviction. To the contrary, even assuming that Carter did not physically deliver the drugs to Gibson, the evidence is sufficient to support a verdict against him under the law of the parties as charged to the jury.
The pertinent portion of the charge reads:
Now if you find from the evidence beyond a reasonable doubt that the defendant Alford Lee Carter Jr., on or about the 15th day of August, 1997, in Freestone County, Texas, did then and there intentionally or knowingly deliver, by actual transfer to Phylis Gibson or by constructive transfer from Gary McQuirter aka Bam to Phylis Gibson, a controlled substance namely cocaine in an amount including adulterants and dilutants less than one gram then you will find the defendant guilty of the offense of Delivery of Controlled Substance namely cocaine under one gram, or
If you find from the evidence beyond a reasonable doubt that on or about August 15, 1997 in Freestone County, Texas, Gary McQuirter aka Bam did intentionally or knowingly deliver a controlled substance by actual transfer to Phylis Gibson namely cocaine of an aggregate weight including any adulterants or dilutants under one gram, and the defendant Alford Lee Carter Jr. in the course of such delivery, if any, did then and there with intent to promote or assist such delivery, if any, from Gary McQuirter aka Bam to Phylis Gibson, aid, solicit, or encourage Gary McQuirter aka Bam to commit said offense, if any, by taking an order for said cocaine, if any, from Phylis Gibson, or by delivering money obtained from Phylis Gibson to Gary McQuirter aka Bam for the purchase of said cocaine, if any, then you will find the defendant Alford Lee Carter Jr. guilty of the offense of Delivery of a Controlled Substance, namely cocaine, of an aggregate weight including of any adulterants and dilutants less than one gram.
Both Gibson and Sylvest testified that Carter took Gibson’s order for cocaine as well as the money to purchase it and gave the money to McQuirter for the purchase. This evidence is uncontroverted. Considering all the evidence, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Clewis, 922 S.W.2d at 129. The evidence is factually sufficient to support the verdict. Issue one is overruled.
The judgment is affirmed.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed January 27, 1999
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