in Re Brandon O'Neil Robert ( 2023 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
February 9, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00765-CR
IN RE BRANDON O’NEIL ROBERT, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Court at Law
Austin County, Texas
Trial Court Cause No. 19CR-35862
MEMORANDUM OPINION
On October 24, 2022, relator Brandon O’Neil Robert 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 Daniel
W. Leedy, presiding judge of the County Court at Law of Austin County, to rule
on relator’s motion to set-aside indictment.
To be entitled to mandamus relief, the relator must show that (1) he has no
adequate remedy at law to redress his alleged harm, and (2) what he seeks to
compel is a ministerial act, not 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, 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). For relator to
be entitled to mandamus relief, the record must show (1) the motion was filed and
brought to the attention of the respondent-judge for a ruling, and (2) the
respondent-judge has not ruled on the motion within a reasonable time after the
motion was submitted to the court for a ruling or after the party requested a ruling.
In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding).
As the party seeking mandamus relief, relator has the burden of providing
this court with a sufficient record to establish his right to mandamus relief. Id. at
73–74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must
file with the mandamus 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 the 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. 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 knowledge is not imputed to the
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trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.]
2020, orig. proceeding).
Relator has not provided this court with a mandamus record to demonstrate
that a motion to set-aside indictment is pending in the trial court. Similarly, there
is no record that relator has brought a pending motion to the attention of the
respondent-judge for a ruling. Mere filing is insufficient because the clerk’s
knowledge is not imputed to the trial judge. See Ramos, 598 S.W.3d at 473. The
respondent-judge is not required to consider a motion that has not been called to
the trial court’s attention by proper means. See Henry, 525 S.W.3d at 382. Even if
relator showed that his motion is properly pending in the trial court and the trial
court was made aware of it, relator has not shown that it has been pending for an
unreasonable period of time. In sum, relator has not made the requisite showing.
See Gomez, 602 S.W.3d at 73.
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 Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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