IN THE
TENTH COURT OF APPEALS
No. 10-10-00384-CR
IN RE MARLIN WAYNE WEBB
Original Proceeding
MEMORANDUM OPINION
In this original proceeding, Relator Marlin Webb seeks mandamus relief against
the respondent trial judge on the allegation that Respondent has failed to rule on
Webb’s motions for DNA testing and for appointment of counsel in that proceeding.1
Webb asserts that the motions for DNA testing and for appointment of counsel
were filed on April 23, 2010. He further asserts that he filed two motions to compel
DNA proceedings on September 30, 2010 and October 12, 2010, respectively, but
Respondent still has not ruled on his motions for DNA testing and for appointment of
1 The petition for writ of mandamus has several procedural deficiencies. It does not include the
certification required by Rule of Appellate Procedure 52.3(j). See TEX. R. APP. P. 52.3(j). It lacks a certified
or sworn record, as required by Rules 52.3(k) and 52.7(a)(1). See id. 52.3(k), 52.7(a)(1). And it lacks proof
of service on the Respondent; a copy of all documents presented to the Court must be served on all parties
to the proceeding and must contain proof of service. Id. 9.5. Because of our disposition and to expedite it,
we will implement Rule 2 and suspend these rules in this proceeding only. Id. 2.
counsel.
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). 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. Mere
filing of a pleading or letter with the clerk does not impute knowledge to the trial court.
See In re Flores, No. 04-03-00449-CV, 2003 WL 21480964 (Tex. App.—San Antonio June
25, 2003, orig. proceeding).
Webb bears the burden of providing this Court with a sufficient record to
establish his right to mandamus relief. See In re Mullins, No. 10-09-00143-CV, 2009 WL
2959716, at *1, n.1 (Tex. App.—Waco Sept. 16, 2009, no pet.) (mem. op.). There is no
record showing that Webb has brought the matter to the attention of the trial judge.
Because Webb has not shown he is entitled to relief, we deny the petition for writ
of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition denied
Opinion delivered and filed November 24, 2010
[OT06]
In re Webb Page 2