in Re Quinn McGary ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00141-CR
IN RE QUINN MCGARY
Original Mandamus Proceeding
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Relator, Quinn McGary, proceeding pro se, has petitioned this Court for mandamus relief.
McGary claims to have filed a motion in the trial court requesting a speedy hearing on the State’s
Motion to Revoke his community supervision and that the trial court has failed to rule on it in a
timely manner. McGary asks this Court to issue a writ of mandamus to compel the Fifth Judicial
District Court of Cass County to rule on his motion.1
We may grant a petition for writ of mandamus when the relator shows that there is no
adequate remedy at law to redress the alleged harm and that the act to be compelled is purely
ministerial. Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig.
proceeding). In proper cases, mandamus may issue to compel a trial court to act. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see also Eli Lily & Co. v.
Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding) (trial court abuses discretion by
refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205,
207 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding) (mandamus appropriate remedy to
require trial court to hold hearing and exercise discretion). A trial court is not required to consider
or rule on a motion unless the motion is called to the court’s attention. See Blakeney, 254 S.W.3d
at 662.
1
We may, where appropriate, direct a trial court to rule on a motion after a reasonable time, but this Court cannot
instruct the trial court how to rule. See In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig.
proceeding).
2
McGary’s petition is not accompanied by a certified or sworn copy of the motion that is
the subject of his complaint, as is required by the Texas Rules of Appellate Procedure. See TEX.
R. APP. P. 52.3(k)(1)(A). This failure to comply with the applicable Rule is fatal to his request for
relief.
Further, McGary’s petition is accompanied by no proof that he brought this matter to the
attention of the trial court, assuming the motion was filed in the first place. “[M]andamus relief,
however, must be predicated on an adequate showing that a request for a ruling has been properly
and adequately presented to the trial court and that the court has declined to rule.” Blakeney, 254
S.W.3d at 661. We are unable to determine if this matter has been brought to the trial court’s
attention or whether the trial court has had a reasonable time in which to rule on McGary’s motion.
It is the relator’s burden to provide this Court with a sufficient record to establish the right
to mandamus relief. See TEX. R. APP. P. 33.1(a), 52.3(k)(1)(A), 52.7(a)(1). Here, the record is
inadequate to grant mandamus relief. Accordingly, we deny McGary’s petition for writ of
mandamus.2
Ralph K. Burgess
Justice
Date Submitted: August 25, 2015
Date Decided: August 26, 2015
Do Not Publish
2
McGary did attach, however, an excerpt from a reporter’s record, memorializing the trial court’s revocation of
McGary’s community supervision and sentencing him to ten years’ imprisonment. However, there is no cause number
on the reporter’s record excerpt. More significantly, though, McGary also attached an order discharging him from
community supervision. From the documents attached, it appears McGary is no longer on supervision in the cause
number at issue.
3