Petition for Writ of Mandamus Denied and Memorandum Opinion filed May 27, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-08-00384-CV
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IN RE MICHAEL SPEED, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On May 8, 2008, relator, Michael Speed, filed a petition for writ of mandamus in this court. See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable William C. Kirkendall, presiding judge of the 25th District Court of Colorado County, to (1) rule on his motion for entry of a nunc pro tunc judgment, motion to compel, request for a hearing on his motion, and request for findings of fact and conclusions of law; and (2) enter a nunc pro tunc judgment regarding the failure to reference relator=s previous plea of Anot guilty@ or the commencement of a jury trial in the November 23, 1992 judgment on the aggravated robbery conviction based on relator=s plea of guilty.
A[M]andamus may be appropriate to impel the consideration of a motion, the issuance of a ruling, an entry of a judgment or other act, the doing of which is not discretionary.@ White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982). Consideration of a motion properly filed and before the court is ministerial. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). However, we may not instruct the trial court on how to rule on a properly filed motion. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.CSan Antonio 2004, orig. proceeding). The relator establishes an abuse of discretion if the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion. In re Keeter, 134 S.W.3d 250, 252 (Tex. App.CWaco 2003, orig. proceeding). However, the trial court has a reasonable time in which to rule. In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.CAmarillo 2003, orig. proceeding). What constitutes a reasonable time depends on the facts and circumstances of the particular case. In re Salazar, 134 S.W.3d 357, 358 (Tex. App.CWaco 2003, orig. proceeding).
Relator filed his motion for entry of a judgment nunc pro on January 23, 2008; proposed order on February 7, 2008; request for a hearing on February 22, 2008; motion to compel a ruling on March 12, 2008; and request for findings of fact and conclusions of law on April 3, 2008. Relator filed his petition for mandamus on May 8, 2008. We conclude that relator has not demonstrated that a period of approximately three and one-half months since the filing of relator=s motion for entry of a nunc pro tunc judgmentCthe oldest motionCis an unreasonable amount of time for that motion to be pending before the trial court such as to warrant mandamus relief.
The certificate of service on each of relator=s motions shows that he mailed those motions to the District Clerk of Colorado County. However, filing a motion with the district clerk does not show that the trial court is aware of it. In re Villarreal, 96 S.W.3d at 710 n.2. Nor is the clerk=s knowledge imputed to the trial court. In re Hearn, 137 S.W.3d at 685; In re Villarreal, 96 S.W.3d at 710 n.2. Therefore, it is incumbent on relator to show that the trial court received the motion. See In re Villarreal, 96 S.W.3d at 710 n.2.
Relator further requests that we compel respondent to enter the nunc pro tunc judgment. AAn act is ministerial >when the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment.=@ State ex rel. Healy v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (quoting Tex. Dep=t of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981)). A court of appeals abuses its discretion in granting a mandamus when the act sought to be compelled is not ministerial. State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). We may not compel respondent to enter a nunc pro tunc judgmentCa discretionary act.
Finally, relator has not provided a sworn or certified copy of the mandamus record as required by Rule 52.7(1) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 52.7(1).
Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator=s petition for writ of mandamus.
PER CURIAM
Petition Denied and Memorandum Opinion filed May 27, 2008.
Panel consists of Justices Frost, Seymore, and Guzman.