NUMBER 13-19-00579-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
IN RE PHILLIP M. GUTHRIE
____________________________________________________________
On Petition for Writ of Mandamus.
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MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Perkes
Memorandum Opinion by Justice Longoria 1
Relator Phillip M. Guthrie, proceeding pro se, filed a petition for writ of mandamus
in the above cause on November 12, 2019. Through this original proceeding, relator
seeks to compel the trial court to rule on and grant relator’s motion for nunc pro tunc
judgment. In sum, relator contends that his judgment of conviction is incorrect because
it fails to correctly credit him with time served. We deny the petition for writ of mandamus.
1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d)
(“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief,
the court may hand down an opinion but is not required to do so.”).
To be entitled to mandamus relief, the relator must establish both that he has no
adequate remedy at law to redress his alleged harm, and that what he seeks to compel
is a purely ministerial act not involving a discretionary or judicial decision. In re Harris,
491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422
S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet
both requirements, then the petition for writ of mandamus should be denied. State ex
rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007).
It is the relator’s burden to properly request and show entitlement to mandamus
relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled
to the extraordinary relief he seeks.”). In addition to other requirements, the relator must
include a statement of facts supported by citations to “competent evidence included in the
appendix or record” and must also provide “a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the appendix or record.”
See generally TEX. R. APP. P. 52.3. As the party seeking relief, the relator has the burden
of providing the Court with a sufficient mandamus record to establish his right to a writ of
mandamus. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.
proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.
52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the
required contents for the record).
A trial court has a ministerial duty to consider and rule on motions properly filed
and pending before it, and mandamus may issue to compel the trial court to act. In re
Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding)
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(per curiam); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding); Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001, orig.
proceeding). A relator must establish that 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 within a reasonable time. In re Henry, 525 S.W.3d at 382; In re Layton, 257
S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d
885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).
In this case, the relator has failed to meet his burden to show that the trial court
had a legal duty to rule, was asked to rule, and failed or refused to rule within a reasonable
time. See In re Henry, 525 S.W.3d at 382; In re Layton, 257 S.W.3d at 795. Moreover,
while a trial court has a ministerial duty to rule upon a motion that is properly and timely
presented to it for a ruling, it generally has no ministerial duty to rule a certain way on that
motion. In re State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236
S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding); In re Mendoza, 467 S.W.3d
76, 78 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding). Accordingly, we deny
the petition for writ of mandamus. See In re Harris, 491 S.W.3d at 334; In re McCann,
422 S.W.3d at 704.
NORA L. LONGORIA
Justice
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed this the
12th day of November, 2019.
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