Petition for Writ of Mandamus Denied and Memorandum Majority and
Dissenting Opinions filed September 14, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00387-CR
IN RE KENNETH RAY SOWELL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
262nd District Court
Harris County, Texas
Trial Court Cause No. 1007515
MEMORANDUM MAJORITY OPINION
On July 15, 2021, relator Kenneth Ray Sowell 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 complains that the presiding judge of the 262nd District
Court of Harris County has not ruled on his motion for nunc pro tunc judgment
correcting the affirmative finding that a weapon was used during the commission of
the offense.1
To be entitled to mandamus relief, a relator must show (1) that he has no other
adequate legal remedy; and (2) the act sought to be compelled is purely ministerial.
In re Yeager, 601 S.W.3d 356, 358 (Tex. Crim. App. 2020) (orig. proceeding). 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). 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. Id.
The record shows that relator filed his motion for nunc pro tunc judgment in
the trial court.2 However, relator has not shown that his motion was presented to the
trial court for a ruling. 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
1
Relator titled his filing in this court as a petition for writ of habeas corpus. However, he
seeks mandamus relief, not habeas corpus relief.
2
Relator has filed an appeal from the trial court’s failure to rule on his motion for nunc pro
tunc judgment, which is pending in this court in case number 14-21-00346-CR. The clerk’s record
in the appeal contains relator’s motion for nunc pro tunc judgment. An appellate court may take
judicial notice of its own records in the same or related proceedings involving the same or nearly
the same parties. Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987). Because this
mandamus proceeding and the appeal pending in cause number 14-21-00346-CR involve the same
motion filed in the trial court by relator, we can take judicial notice of the clerk’s record in the
appeal. See In re Carrington, No. 07-14-00030-CV, 2014 WL 793990, at *3 (Tex. App.—
Amarillo Feb. 25, 2014, orig. proceeding) (mem. op.).
2
knowledge is not imputed to the trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex.
App.—Houston [14th Dist.] 2020, orig. proceeding).
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. (Spain, J., dissenting).
Do Not Publish — Tex. R. App. P. 47.2(b).
3