in Re Michael William Godfrey ( 2014 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
December 18, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00974-CR
IN RE MICHAEL WILLIAM GODFREY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
230th District Court
Harris County, Texas
Trial Court Cause No. 912345
MEMORANDUM OPINION
On December 9, 2014, relator Michael William Godfrey 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 Brad
Hart, presiding judge of the 230th District Court of Harris County, to rule on his
motion nunc pro tunc.
According to relator, on September 30, 2002, relator pleaded guilty to sexual
assault of a child pursuant to a plea bargain, and was placed on deferred
adjudication probation for ten years. As a condition of his probation, relator was
required to wear an ankle monitor and was confined to his house. The State moved
to adjudicate relator’s guilt for alleged violations of the conditions of his probation.
On December 2, 2005, the Honorable Susan Brown adjudicated relator’s guilt and
sentenced him to fifteen years’ incarceration. Judge Brown stated that she was
granting relator credit for all the time he had been in custody. Relator did not
appeal the adjudication of his guilt.
On August 29, 2014, relator filed a motion nunc pro tunc in the 230th
District Court, seeking to “correct” the record to reflect 1,158 days of credit for the
time relator was required to wear the ankle monitor. On November 12, 2014,
relator’s mother emailed the Harris County District Clerk’s Office, requesting the
status of the motion nunc pro tunc. The District Clerk’s Office responded that its
system did not show a ruling on the motion nunc pro tunc and that she needed to
contact the 230th District Court with any questions regarding the lack of a ruling.
On November 20, 2014, relator’s mother emailed the District Clerk’s Office,
advising that someone from 230th District Court told her that the motion nunc pro
tunc was in the file, but the judge does not read, and does not have to read, mail
from inmates. She called the District Clerk’s Office, which told her that the judge
did not have to read inmate mail because of Section 552.028 of the Texas
Government Code,1 and suggested that she speak with relator’s attorney for
1
See Tex. Gov’t Code Ann. 552.028(a), (b) (West 2012) (providing that a governmental
body is not required to accept or comply with a request for information from an individual
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assistance. Relator’s mother emailed Chris Daniel, Harris County District Clerk,
requesting that Judge Hart rule on relator’s motion nunc pro tunc.
To be entitled to mandamus relief, a relator must show that he has no
adequate remedy at law to redress his alleged harm, and what he seeks is a
ministerial act, not involving a discretionary or judicial decision. State ex rel.
Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007).
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 Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding); Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001,
orig. proceeding). To be entitled to mandamus relief compelling a trial court to
rule on a properly filed motion, relator must establish that the trial court (1) had a
legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed
or refused to rule on the motion within a reasonable time. In re Layton, 257
S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina, 94
S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). However, a
court is not required to consider a motion not called to its attention. Layton, 257
S.W.3d at 795.
It is relator’s burden to provide a sufficient record to establish that he is
entitled to relief. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding). Relator has not done so. Although relator has attached to his petition
imprisoned or confined in a correction facility or an agent of that individual other than the
attorney).
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for mandamus relief copies of emails between his mother and the District Clerk’s
Office which contain references to a motion nunc pro tunc, relator has not provided
file-stamped copies of his motion in the mandamus record. See Tex. R. App. P.
52.3(k), 52.7(a). Relatoralso has not shown that the motion nunc pro tunc has been
presented to the trial court. The trial court is not required to consider a motion that
has not been called to its attention by proper means. See Layton, 257 S.W.3d at
795.
Relator has not established that he is entitled mandamus relief. Accordingly,
we deny relator’s petition for a writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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