in Re Reginald Nelson ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00663-CR
IN RE Reginald NELSON
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: September 26, 2018
PETITION FOR WRIT OF MANDAMUS DENIED
On September 14, 2018, relator Reginald Nelson filed a petition for writ of mandamus
asking this court to compel the trial court to rule on his 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 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). A trial court has a ministerial duty to consider and rule
on a habeas application or motion properly filed and pending before it, and mandamus may issue
to compel the trial court to act. See In re Debenedetto, No. 04-18-00381-CR, 2018 WL 3039949,
at *1 (Tex. App.—San Antonio June 20, 2018, orig. proceeding) (mem. op., not designated for
1
This proceeding arises out of Cause No. 2005CR1719A, styled Ex parte Reginald Nelson, pending in the 175th
Judicial District Court, Bexar County, Texas, the Honorable Catherine Torres-Stahl presiding.
04-18-00663-CR
publication). “We consider various factors in determining whether a motion has been pending for
an unreasonable time, including the trial court’s actual knowledge of the pending motion, its overt
refusal to act on it, the state of the court’s docket, and the court’s inherent power to control its own
docket.” See In re Gallardo, 269 S.W.3d 643, 645 (Tex. App.—San Antonio 2008, orig.
proceeding). “In a case such as the one before us, a relator has the burden to provide this court
with a record showing the trial court was made aware of the motion at issue and that such motion
has not been ruled on by the trial court for an unreasonable period of time.” See In re Debenedetto,
2018 WL 3039949, at *1.
The only record Nelson provided in this case is a copy of his habeas application; however,
the application is not file-stamped by the district clerk. Furthermore, Nelson has not demonstrated
his application was properly presented to the trial court. “‘A trial court is not required to consider
a motion that has not been called to its attention by proper means.’” Id. (quoting In re Henry, 525
S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding)). Finally, Nelson
states he mailed his habeas application on August 8, 2018; therefore, he cannot demonstrate any
delay in ruling on the motion is unreasonable. See In re Blakeney, 254 S.W.3d 659, 662-63 (Tex.
App.—Texarkana 2008, orig. proceeding); In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San
Antonio 2004, orig. proceeding). Because Nelson has not shown he is entitled to mandamus relief,
we deny his petition for writ of mandamus.
PER CURIAM
DO NOT PUBLISH
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