Petition for Writ of Mandamus Denied and Memorandum Majority and
Dissenting Opinions filed May 19, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00744-CR
NO. 14-21-00745-CR
NO. 14-21-00746-CR
NO. 14-21-00747-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 MAJORITY OPINION
On December 20, 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
his motion to compel the Harris County District Attorney’s Office to give DNA
results to relator and his motion to appoint counsel.
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. Id.
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 also 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 the motion in
fact was filed and is pending before the trial court. Gomez, 602 S.W.3d at 74.
Relator previously filed a petition for writ of mandamus requesting the same
relief as he does in this petition. See In re McGrath, Nos. 14-21-00381-CR, 14-21-
00382-CR, 14-21-00383-CR, and 14-21-00384-CR, 2021 WL 3359244, at *1 (Tex.
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App.—Houston [14th Dist.] Aug. 21, 2021, orig. proceeding) (mem. op., not
designated for publication). We denied relator’s first petition for failing to provide
a record sufficient to show his entitlement to mandamus relief. Id. Specifically,
relator had not provided this court with file-stamped copies of his motions or other
proof that the motions in fact were filed and pending in the trial court and the trial
court had not acted on those motions within a reasonable time. Id.
Relator states in his current petition that he has unsuccessfully attempted to
obtain file-stamped copies of his motions from the clerk’s office. Relator has
included a copy of the certified mail card showing that someone at the district clerk’s
office signed for it on September 2, 2021. See Gomez, 602 S.W.3d at 71, 74. Relator
asks this court to accept the copies in the mandamus record as having been filed in
the trial court. Assuming arguendo that relator’s motions have been filed and are
pending in the trial court, relator has not shown that the trial court is aware of the
motions or that a reasonable time had passed without the trial court taking any action
on his motions. 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 (Spain, J., dissenting).
Do Not Publish — Tex. R. App. P. 47.2(b).
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