in Re William Solomon Lewis ( 2018 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 31, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00757-CR
IN RE WILLIAM SOLOMON LEWIS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 2059197
MEMORANDUM OPINION
On August 28, 2018, relator William Solomon Lewis filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017);
see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Bill Harmon, presiding judge of the County Civil Court at Law No. 2 of
Harris County, to rule on the merits of relator’s application for writ of habeas corpus.
To be entitled to mandamus relief, a relator must show (1) the relator has no
adequate remedy at law for obtaining the relief sought; and (2) the relator seeks to
compel a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d
488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a
ministerial duty to consider and rule on motions properly filed and pending before it
when brought to the court’s attention, and mandamus may issue to compel the trial
court to act. In re Henry, 525 S.W.3d 381 (Tex. App.–Houston [14th Dist.] 2017,
orig. proceeding).
As the party seeking relief, relator has the burden of providing this court with
a sufficient record to establish his right to mandamus relief. See Walker v. Packer,
827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.7(a)(1)
(relator must file with 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 be entitled to mandamus relief for a trial court’s failure to rule on
a motion, the record must show both that the motion was filed and brought to the
attention of the judge for a ruling. See In re Foster, 503 S.W.3d 606, 607 (Tex.
App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam); In re Layton, 257
S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding).“Filing a document
with the district clerk does not mean the trial court is aware of it; nor is the clerk’s
knowledge imputed to the trial court.” In re Querishi, No. 14-11-00294-CV, 2011 WL
1365002, at *1 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, orig. proceeding) (per
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curiam) (mem. op., not designated for publication) (citing In re Hearn, 137 S.W.3d 681,
685 (Tex. App.—San Antonio 2004, orig. proceeding)).
The only record that relator has provided is a copy of this court’s opinion in
Ex parte Lewis, No. 14-16-00629-CR, 2017 WL 6559647 (Tex. App.—Houston
[14th Dist.] Dec. 21, 2017, pet. ref’d), in which our court dismissed relator’s appeal
of the trial court’s June 24, 2016 order denying his application for a writ of habeas
corpus for lack of jurisdiction because the record did not show that the trial court has
ruled on the merits of his habeas application.
Relator is not entitled to mandamus relief because he has not provided our
court with a record showing that he requested a hearing or requested the trial court
to rule on merits of his habeas application after we issued our opinion dismissing
relator’s appeal in Ex parte Lewis. “Presenting the motion, along with a request for
a hearing, is required to let the court know that the defendant wants the trial court to
act on the motion and whether the defendant would like a hearing on the motion.”
Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).
Additionally, Ex parte Lewis states that the trial court granted appellant’s
request for counsel in January 2016. 2017 WL 6559647 at *1. Because the opinion
in the record provided by relator indicates that he is represented by counsel below,
his pro se mandamus petition presents nothing for this court’s review because a
criminal defendant is not entitled to hybrid representation. See Robinson v. State,
240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d 481, 498
(Tex. Crim. App. 1995). The absence of a right to hybrid representation means that
a relator’s pro se mandamus petition should be treated as presenting nothing for this
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court’s review. See Gray v. Shipley, 877 S.W.2d 806, 806 (Tex. App.–Houston [1st
Dist.] 1994, orig. proceeding).
For these reasons, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Donovan, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).
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