NO. 12-23-00224-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
ANANDO LAMORRIS ROBERT, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Anando LaMorris Robert, acting pro se, filed this original proceeding, to challenge
Respondent’s failure to rule on his motion for nunc pro tunc judgment. 1
On August 28, 2023, the Clerk of this Court informed Relator that his petition fails to
comply with appellate Rule 52.7. See TEX. R. APP. P. 52.7 (record). The notice warned that the
petition would be referred to this Court for dismissal unless Relator provided the record on or
before September 7. Relator filed a motion for extension of time, which this Court overruled for
failure to comply with Texas Rule of Appellate Procedure 9.5.’s service requirements. This
Court received no other communication from Relator.
Generally, a party seeking mandamus relief must bring forward all that is necessary to
establish his claim for mandamus relief. See TEX. R. APP. P. 52. Texas Rule of Appellate
Procedure 52.7 requires the relator to file a record as part of his petition in an original
proceeding. TEX. R. APP. P. 52.7. Specifically, a relator must file (1) a certified or sworn copy of
every document that is material to his claim for relief and that was filed in any underlying
proceeding; and (2) “a properly authenticated transcript of any relevant testimony from any
underlying proceeding, including any exhibits offered in evidence, or a statement that no
1
Respondent is the Honorable Mark. A. Calhoon, Judge of the 3rd District Court in Henderson County,
Texas. The State of Texas is the Real Party in Interest.
testimony was adduced in connection with the matter complained.” TEX. R. APP. P. 52.7(a). It is
a relator's burden to provide this court with a record sufficient to establish the right to
extraordinary relief. See In re Daisy, No. 12-13-00266-CR, 2014 WL 5577068, at *2 (Tex.
App.–Tyler Aug. 29, 2014, orig. proceeding) (mem. op., not designated for publication). In this
case, Relator did not provide a record in accordance with Rule 52.7. Absent a record, we cannot
determine whether Relator is entitled to relief. See In re McCreary, No. 12-15-00067-CR, 2015
WL 1395783 (Tex. App.–Tyler Mar. 25, 2015, orig. proceeding) (per curiam) (mem. op., not
designated for publication).
Additionally, “[i]f 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); see also
In re Ramos, 598 S.W.3d 472, 474 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding)
(judge was 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); 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
motion on July 1, 2020; thus, reasonable time for ruling had not passed). To obtain a writ of
mandamus in this context, the relator must show that the trial court (1) had a legal duty to
perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do
so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.–San Antonio 2003, orig. proceeding). A trial
court cannot be expected to consider a motion not called to its attention. See In re Chavez, 62
S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). It is incumbent upon the relator
to establish that the motion has been called to the trial court's attention. See id.
Because Relator failed to provide a record, he cannot show that his motion was brought
to Respondent’s attention. At best, Relator provides an unfile marked copy of his motion and a
letter requesting that this letter be file marked and returned to him, as well as a request for
notification of any ruling made on the motion. A relator’s statement that a document was
properly filed with the clerk is an insufficient basis from which to reasonably infer that the trial
court had notice of that document and the need to act on it. See In re Blakeney, 254 S.W.3d
2
659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) (trial court not required to consider
motion not called to its attention; even showing motion was filed with clerk does not prove
motion was brought to trial court's attention or was presented to trial court with request for
ruling); see also Chavez, 62 S.W.3d at 228 (clerk’s knowledge not imputed to trial court).
Relator does not demonstrate any steps taken to ensure that the trial court was afforded or had
notice of his motion. See Chavez, 62 S.W.3d at 228. Under these circumstances, Relator has not
established his entitlement to mandamus relief. See In re Wheeler, No. 12-18-00127-CR, 2018
WL 2440464, at *1-2 (Tex. App.—Tyler May 31, 2018, orig. proceeding) (mem. op., not
designated for publication) (denying mandamus relief when relator failed to show that he called
motion for DNA testing to respondent's attention).
Accordingly, we deny the petition for writ of mandamus.
Opinion delivered September 29, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 29, 2023
NO. 12-23-00224-CR
ANANDO LAMORRIS ROBERT,
Relator
V.
HON. JUDGE MARK A. CALHOON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Anando LaMorris Robert; who is the relator in appellate cause number 12-23-00224-CR and the
defendant in trial court cause number CR17-337-3, formerly pending on the docket of the 3rd
Judicial District Court of Henderson County, Texas. Said petition for writ of mandamus having
been filed herein on August 28, 2023, 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.