NO. 12-21-00035-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
EDWARD W. SMITH, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Edward W. Smith, acting pro se, filed this original proceeding to challenge Respondent’s
failure to rule on his motion for judgment nunc pro tunc. 1 Relator’s appendix reflects that his
motion was filed on July 1, 2019. The motion sought time credits from November 18, 2015
through April 28, 2017, in trial court cause number 87CR16-32731. 2 On November 21, Relator
drafted a letter to Respondent, in which he requested a ruling on his motion. The letter is file
stamped December 11 and a yellow post-it-note attached to the letter states, “Forwarded to
judge.” On January 30, 2020, Relator drafted another letter to Respondent to again request a
ruling on the motion. The letter is file stamped February 7 and a yellow post-it-note attached to
the letter states, “No Action Taken.” 3
1
Respondent is the Honorable Deborah Oakes Evans, Judge of the 87th Judicial District Court in Anderson
County, Texas. The State of Texas is the Real Party in Interest.
2
This information is based on records filed in another of Relator’s mandamus proceedings regarding this
trial court number. See In re Smith, No. 12-19-00337-CR, 2019 WL 5956674 (Tex. App.—Tyler Nov. 13, 2019,
orig. proceeding) (mem. op., not designated for publication); see also Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim.
App. 2007) (appellate court may take judicial notice of own records in same or related proceedings involving same
or nearly same parties).
3
Relator previously sought mandamus relief from this Court for Respondent’s failure to rule on his motion,
but we denied relief because Relator failed to demonstrate that he called the motion to Respondent’s attention.
See In re Smith, No. 12-19-00337-CR, 2019 WL 5956674 (Tex. App.—Tyler Nov. 13, 2019, orig. proceeding)
(mem. op., not designated for publication).
“If a party properly files a motion with the trial court in a criminal case, the court has a
ministerial duty to rule on the motion within a reasonable time after the motion has been
submitted to the court for a ruling or after the party has requested a ruling.” In re Gomez, 602
S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). For mandamus relief
to be granted in this context, the record must show (1) the motion was filed and brought to the
respondent’s attention for a ruling, and (2) the respondent has not ruled on the motion within a
reasonable time after the motion was submitted to the court for a ruling or after the party
requested a ruling. Id. “Merely filing a motion with a court clerk does not show that the motion
was brought to the trial court’s attention for a ruling because the clerk’s knowledge is not
imputed to the trial court.” Id. at 74.
In this case, the file stamped letter of December 11 is the earliest date at which Relator’s
motion may have been called to Respondent’s attention. Thus, Respondent has possibly been
aware of the motion for approximately three months. Assuming Relator’s motion was properly
filed and called to Respondent’s attention, a reasonable time for ruling has not passed. 4 See In re
Ramos, 598 S.W.3d 472, 474 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (judge
had been aware of motion for judgment nunc pro tunc approximately five months before
appellate court opinion; thus, judge did not rule on motion within reasonable time); see also In
re Sayyed, No. 05-20-00195-CV, 2020 WL 6074117, at *3 (Tex. App.—Dallas Oct. 15, 2020,
orig. proceeding) (mem. op. on reh’g) (at time of October 2020 opinion, respondent had learned
of the motion on July 1, 2020; thus, reasonable time for ruling had not passed). Accordingly, we
deny Relator’s petition for writ of mandamus.
Opinion delivered March 18, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
“After a trial court’s plenary power over a final judgment has expired, the trial court generally lacks
jurisdiction to sign an order in the same case in which the court grants, sets aside, vacates, modifies, corrects, or
reforms its judgment, and the law generally deems void an order in which the trial court purports to do so.” In re
Ramos, 598 S.W.3d 472, 474 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). “But the law creates an
exception for rendition of a judgment nunc pro tunc to correct a clerical error.” Id. “Even though a trial court lacks
jurisdiction to grant a motion for judgment nunc pro tunc that is based on a judicial error rather than a clerical error,
the trial court holds jurisdiction to rule on the motion.” Id. We trust Respondent will promptly rule on Relator’s
motion. See generally Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004) (per curiam) (trial court has
authority to correct judgment to reflect appropriate time credit by nunc pro tunc order and should do so); see In re
Sayyed, No. 05-20-00195-CV, 2020 WL 6074117, at *3 (Tex. App.—Dallas Oct. 15, 2020, orig. proceeding) (mem.
op. on reh’g) (denying mandamus petition without prejudice to relator filing new mandamus proceeding should trial
court not act upon motion for judgment nunc pro tunc, which sought correction of time credits, within reasonable
time).
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 18, 2021
NO. 12-21-00035-CR
EDWARD W. SMITH,
Relator
V.
HON. DEBORAH OAKES EVANS,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Edward W. Smith; who is the relator in appellate cause number 12-21-00035-CR and the
defendant in trial court cause number 87CR16-32731, formerly pending on the docket of the
87th Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus
having been filed herein on March 4, 2021, and the same having been duly considered, because it
is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
3