In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00225-CV
IN RE TOM CASTILLEJA, RELATOR
Original Proceeding
June 18, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Relator, Tom Castilleja, has filed his petition for writ of mandamus in which he
asks this Court to issue a writ of mandamus directing Respondent, the Honorable John
J. McClendon III, presiding judge of the 137th District Court, to rule on Relator’s motions
for post-conviction DNA testing and for discovery. We will deny Relator’s petition.
Availability of Mandamus
To be entitled to mandamus relief, a relator must show that he or she has no
adequate remedy at law to redress the alleged harm and that he or she seeks to compel
a ministerial act, one not involving a discretionary or judicial decision. State ex rel.
Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App.
2007) (orig. proceeding). Generally, a relator bears the burden to properly request and
show entitlement to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—
Amarillo 2004, orig. proceeding). Additionally, a relator must establish the following: (1)
a legal duty to perform, (2) a demand for performance, and (3) a failure or refusal to act.
In re Guetersloh, 326 S.W.3d 737, 740 (Tex. App.—Amarillo 2010, orig. proceeding)
(per curiam); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.
proceeding) (citing O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992)
(orig. proceeding)).
To that end, a relator must provide the reviewing court with a record sufficient to
establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Davidson,
153 S.W.3d at 491; see also TEX. R. APP. P. 52.3(k) (specifying required contents for
appendix), 52.7(a)(1) (providing that relator must file with petition “a certified or sworn
copy of every document that is material to the relator’s claim for relief and that was filed
in any underlying proceeding”). “Even a pro se applicant for a writ of mandamus must
show himself entitled to the extraordinary relief he seeks.” Barnes v. State, 832 S.W.2d
424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam).
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Analysis
Relator maintains that Respondent has failed to consider and rule on his motions
that have been pending since sometime in February 2014.1 Relator also correctly
points out that a trial court has a ministerial duty to rule on properly filed motions within
a reasonable time. See O’Donniley v. Golden, 860 S.W.2d 267, 269–70 (Tex. App.—
Tyler 1993, orig. proceeding) (per curiam). However, from the appendix with which we
have been provided, it is not clear when or whether these motions were ever received
or properly filed. In fact, the copies provided to us bear no file stamp at all from the
district clerk’s office, and no other document in the appendix confirms that the motions
were received or filed. See In re Mendez, No. 07-13-00201-CV, 2013 Tex. App. LEXIS
9329, at *3 (Tex. App.—Amarillo July 29, 2013, orig. proceeding) (per curiam) (citing In
re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding)); In re
Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (per
curiam). We see that Relator purportedly sent letters to the district clerk’s office and the
administration office in an apparent effort to check on the status of these motions.
1
We observe that, while Relator complains that Respondent has not ruled on the motions at
issue, Relator has also mentioned in a brief, one-sentence declaration that Respondent, the Honorable
John J. McClendon III, the current presiding judge of the 137th District Court, should recuse himself from
the matter because Respondent represented Relator in 2004 in trial court cause number 2004-407,067
and on direct appeal of Relator’s resulting murder conviction in appellate cause number 07-06-00062-CR.
Our records confirm that such is the case. Relator does not develop this issue in any way to suggest that
he presents the matter for this Court’s consideration in the instant petition.
However, we note that the existence of such facts alone demonstrates that Respondent is
disqualified from acting as the presiding judge over such matters raised in connection with Relator’s
original conviction when Respondent was Relator’s counsel in those proceedings. See TEX. CONST. art.
V, § 11 (“No judge shall sit in any case . . . when the judge shall have been counsel in the case.”); TEX.
CODE CRIM. PROC. ANN. art. 30.01 (West 2006) (“No judge or justice of the peace shall sit in any case
where he . . . has been of counsel for the State or the accused . . . .”). Therefore, Relator would be
prohibited by law from considering and acting on the motions as Relator now requests that he be
compelled to do.
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However, those letters suffer the same infirmity: no indicia that they were received or
filed by the respective addressees.
Further, even if we were to presume that the motions were filed, nothing in the
record before us indicates that the motions have been presented to Respondent. See
In re Villarreal, 96 S.W.3d at 710 (noting that a relator must demonstrate that trial court
was aware of the document at issue); In re Chavez, 62 S.W.3d at 228 (observing that
filing a document with the district clerk does not mean the trial court knows of the
document and that clerk’s knowledge is not imputed to the trial court). We cannot fault
Respondent for failing to act when he is or was unaware of the need to act. See In re
Johnson, No. 07-13-00342-CV, 2013 Tex. App. LEXIS 13334, at *3 (Tex. App.—
Amarillo Oct. 28, 2013, orig. proceeding) (per curiam); In re Villarreal, 96 S.W.3d at 710.
Relator has failed to provide this Court with a file-marked copy of his motions or
any other records to demonstrate that his motions were properly filed and were
presented to the trial court before which the motions have remained pending for an
unreasonable length of time. Consequently, we cannot determine whether his motions
were properly filed or, even assuming that they were, the date on which they were
received by either the district clerk’s office or Respondent. We, then, are left without the
means to determine whether Relator’s motions have been pending for an unreasonable
amount of time. See In re Chavez, 62 S.W.3d at 228 (observing that trial court has a
reasonable time within which to perform ministerial duty of considering and acting upon
properly filed motions). In the absence of an appendix containing the required
documents, Relator has failed to sufficiently show that Respondent had a legal duty to
4
perform, that Relator made an adequate demand for performance, and that Respondent
has failed or refused to act. See id.
By failing to provide the necessary documents to support his allegations, Relator
has not only failed to comply with the rules of procedure governing mandamus but has
also failed to provide us a record sufficient to enable us to assess his contentions. See
In re Villarreal, 96 S.W.3d at 710. That being so, Relator has failed to present this Court
with a record sufficient to demonstrate that he is entitled to the extraordinary relief
requested. See Walker, 827 S.W.2d at 837; In re Davidson, 153 S.W.3d at 491.
Conclusion
Accordingly, we deny Relator’s petition for writ of mandamus. See TEX. R. APP.
P. 52.8(a); see also In re Molina, 94 S.W.3d at 886.
Per Curiam
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