Petition for Writ of Mandamus Denied and Memorandum Opinion filed July
23, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00590-CR
NO. 14-13-00591-CR
NO. 14-13-00592-CR
IN RE DAVID A. PEREZ, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
178th District Court
Harris County, Texas
Trial Court Cause Nos. 1248823, 1249065 & 1323866
MEMORANDUM OPINION
On July 10, 2013, relator 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 complains The Honorable Shawna L. Reagin, presiding judge
of the 176th District Court of Harris County, Texas, has failed to rule on his
motion for judgment nunc pro tunc.
To be entitled to mandamus relief in a criminal case, 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). When a motion
is properly filed and pending before a trial court, the act of considering and
resolving it is ministerial, not discretionary. Ex parte Bates, 65 S.W.3d 133, 134–
35 (Tex. App.—Amarillo 2001, orig. proceeding).
This court is empowered to compel by writ of mandamus a district court to
consider and rule on properly filed pending motions if (1) relator has asked the trial
court to rule, and (2) the trial court either refused to rule or failed to rule within a
reasonable time. See Barnes v. State, 832 S.W.2d 424, 426, 427 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); Von Kolb v. Koehler, 609 S.W.2d 654,
655-56 (Tex. Civ. App.—El Paso 1980, no writ). There is no bright-line rule
establishing a reasonable time period. Ex parte Bates, 65 S.W.3d at 135. Some of
the factors involved in the determination include the trial court’s actual knowledge
of the motion, any overt refusal to act on it, and the state of the trial court's docket.
See id. (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979)). A relator has
the burden of providing this court with a sufficient record to establish his right to
mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig.
proceeding); see Tex. R. App. P. 52.3, 52.7.
In this case, the motion relator claims was filed in the trial court does not
reflect a file-stamp from the 176th District Court and therefore does not
demonstrate the motion is actually pending in the trial court. Absent a showing the
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motion was filed and the trial court is aware of the motion, 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
Panel consists of Justices Boyce, Jamison, and Busby.
Do Not Publish - Tex. R. App. P. 47.2(b)
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