Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 3, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00381-CR
NO. 14-21-00382-CR
NO. 14-21-00383-CR
NO. 14-21-00384-CR
IN RE ALVA Z. MCGRATH JUNIOR, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
179th District Court
Harris County, Texas
Trial Court Cause Nos. 940494, 940495, 940496, 881224
MEMORANDUM OPINION
On July 12, 2021, relator Alva Z. McGrath Junior filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this Court to compel the Honorable Ana
Martinez, presiding judge of the 179th District Court of Harris County, to rule on
and grant two motions—a motion for appointment of counsel and a motion to
compel the district attorney’s office to give DNA results to defendant—which
relator alleges he filed with the district court.
To be entitled to mandamus relief, a relator must show (1) that the relator
has no adequate remedy at law for obtaining the relief the relator seeks; and
(2) what the relator seeks to compel involves a ministerial act rather than a
discretionary act. In re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017)
(orig. proceeding). If a party properly files a motion with a trial court, the trial
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 requested a
ruling. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.] 2020,
orig. proceeding) (citing In re Flanigan, 578 S.W.3d 634, 635–36 (Tex. App.—
Houston [14th Dist.] 2019, orig. proceeding)). Thereafter, if a trial court fails to
rule, mandamus may issue to compel the trial court to act. Ramos, 598 S.W.3d at
473.
As the party seeking relief, it is relator’s burden to provide a sufficient
record to establish that relator is entitled to mandamus relief. In re Gomez, 602
S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding); see Tex.
R. App. P. 52.3(k)(1)(A) (relator’s petition must include an appendix with “a
certified or sworn copy of . . . the document showing the matter complained of”);
Tex. R. App. P. 52.7(a)(1) (relator must file with his 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”). To establish that a motion was filed, the
relator must provide either a file-stamped copy of the motion or other proof that
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the motion in fact was filed and is pending before the trial court. Gomez, 602
S.W.3d at 74.
Relator has not met his burden to provide the court with a sufficient record
demonstrating his entitlement to mandamus relief. Although relator has submitted
a copy of a “Formal Request to Rule on Defendant(s) [sic] Motions” that includes
a declaration and a certificate of service that the request was mailed to the trial
court on March 31, 2021, relator has not submitted a file-stamped copy of either of
the motions as to which he seeks mandamus relief. In the absence of a file-
stamped copy of the motions or other proof that the motions in fact were filed and
are pending before the trial court, relator has not established that either of his
motions are actually pending in the trial court and that the trial court has not acted
on those motions within a reasonable time. See Gomez, 602 S.W.3d at 74.
Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Spain. (Justice Spain dissents and
would dismiss for lack of a proper original-proceeding record.).
Do Not Publish — Tex. R. App. P. 47.2(b).
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