Denied in Part, Dismissed in Part, and Opinion Filed June 25, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00688-CV
IN RE PATRICK BOUVIA KIMBLE, Relator
Original Proceeding from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-95-01665-LN
MEMORANDUM OPINION
Before Justices Lang, Myers, and Whitehill
Opinion by Justice Lang
In this original proceeding, relators seeks a writ directing the trial court to rule on a motion
for judgment nunc pro tunc purportedly sent to the trial court in April 2018. Relator also asks this
Court to determine that the trial court did not make proper findings of fact and conclusions of law
in relation to relator’s 1997 conviction and judgment.
To establish a right to mandamus relief in a criminal case, the relator must show that the
trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). A trial court has a
ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young
v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.
proceeding). To be properly filed and timely presented, a motion must be presented to a trial court
at a time when the court has authority to act on the motion. See In re Hogg–Bey, No. 05–15–
01421–CV, 2015 WL 9591997, at *1–2 (Tex. App.—Dallas Dec. 30, 2015, orig. proceeding)
(mem. op.). A trial court has a reasonable time within which to consider a motion and to rule. In
re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re
Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding). Accordingly, to be
entitled to mandamus relief compelling a trial court to rule on a motion, a relator must establish
that the trial court (1) had a legal duty to rule on the motion because the motion was properly filed
and timely presented, (2) was asked to rule on the motion, and (3) failed or refused to rule on the
motion within a reasonable period of time. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San
Antonio 2003, orig. proceeding).
As the party seeking relief, the relator has the burden of providing the Court with a
sufficient mandamus record to establish his right to mandamus relief. Lizcano v. Chatham, 416
S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v.
Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rules 52.3 and 52.7 require the
relator to provide “a certified or sworn copy” of certain documents, including any order
complained of, any other document showing the matter complained of, and every document that
is material to the relator’s claim for relief that was filed in any underlying proceeding. TEX. R.
APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Here, the mandamus record does not include a certified or sworn copy of the trial court’s
docket sheet or other proof that establishes relator filed the motion for judgment nunc pro tunc,
requested a hearing and/or ruling on the motion, and the trial court has failed to act on relator’s
requests within a reasonable time. TEX. R. APP. P. 52.3(k)(1)(a), 52.7(a). This record is
insufficient to establish that the motion was properly filed and timely presented and that the trial
court was asked to rule but failed to do so within a reasonable time. As such, relator has not
established a violation of a ministerial duty and is not entitled to mandamus relief. Accordingly,
we deny relator’s petition for writ of mandamus as to his request for a writ directing the trial court
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to rule on the motion for judgment nunc pro tunc. See TEX. R. APP. P. 52.8(a) (the court must deny
the petition if the court determines relator is not entitled to the relief sought).
Relator also complains that the trial court did not issue proper findings of fact and
conclusions of law in relation to the 1997 conviction and judgment. Relator seeks a writ of
mandamus finding that the trial court failed to make proper findings of fact and conclusions of
law. These complaints constitute a collateral attack on a final conviction and, therefore, fall within
the scope of a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of
Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015). Only the Texas
Court of Criminal Appeals has jurisdiction in final, post-conviction felony proceedings. Id; Ater
v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re
McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).
Accordingly, we dismiss this proceeding for want of jurisdiction to the extent relator seeks a writ
finding that the trial court failed to issue proper findings of fact and conclusions of law.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
180688F.P05
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in Re: Patrick Bouvia Kimble
Combined Opinion