in Re Anthony James, Relator ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-16-00302-CR
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IN RE ANTHONY JAMES, RELATOR
Original Proceeding
Arising Out of Proceedings before the 137th District Court
In and For Lubbock County, Texas
Trial Court No. 2006-411,486-B; Honorable John “Trey” J. McClendon III, Presiding
August 29, 2016
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Relator, Anthony James, proceeding pro se and in forma pauperis, seeks a writ
of mandamus to compel the Honorable John J. McClendon III to rule on motions
pending in his court.1 Specifically, Relator maintains he has filed three motions: (1)
Motion for Reformation of Judgment-Sentence, (2) Motion to Resentence, and (3)
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Relator requests suspension of Rule 9.3(b) of the Texas Rules of Appellate Procedure which
requires eleven copies and the original of any document that is not electronically filed. Rule 9.3(b)
applies only to filings in the Supreme Court or Court of Criminal Appeals. This court requires the original
and one unbound copy of any document that is not electronically filed. TEX. R. APP. P. 9.3(a)(1). The
requirement for an unbound copy is suspended and the court accepts the filing of Relator’s original
document as complying with the rule.
Motion for Appointment of Counsel for Habeas Corpus. For the reasons expressed, we
deny Relator’s petition for writ of mandamus.
According to Relator’s petition, he was convicted of aggravated sexual assault in
2006.2 He argues that the trial court’s refusal to rule on his pending motions is an
abuse of discretion. He also asserts he has no adequate remedy by appeal.
MANDAMUS STANDARD OF REVIEW
Mandamus relief is extraordinary. In re Braswell, 310 S.W.3d 165, 166 (Tex.
App.—Amarillo 2010, orig. proceeding) (citing In re Southwestern Bell Telephone Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding)). “Mandamus issues only to
correct a clear abuse of discretion or the violation of a duty imposed by law when there
is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.
1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,
917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief, a relator
must satisfy three requirements: (1) a legal duty to perform; (2) a demand for
performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979).
A court is not required to consider a motion not called to its attention. In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Showing
that a motion was filed with the trial court clerk does not constitute proof that the motion
was brought to the trial court’s attention or presented to the trial court with a request for
a ruling. Id.
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His conviction was affirmed. See James v. State, No. 07-06-0429-CR, 2006 Tex. App. LEXIS
4531, at *9 (Tex. App.—Amarillo June 6, 2007, no pet.).
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Additionally, when a motion is properly pending before a trial court, the act of
considering and ruling upon the motion is a ministerial act. Eli Lilly and Co. v. Marshall,
829 S.W.2d 157, 158 (Tex. 1992). However, the trial court has a reasonable time within
which to perform that ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268,
269 (Tex. App.—San Antonio 1997, orig. proceeding). Whether a reasonable period of
time has lapsed is dependent on the circumstances of each case. Barnes v. State, 832
S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). Other factors
include the trial court’s actual knowledge of the motion, its overt refusal to act, the state
of its docket, and other judicial and administrative duties which must be addressed. In
re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo 2003, orig. proceeding). Further,
the party requesting relief must provide a sufficient record to establish his entitlement to
mandamus relief. See Walker, 827 S.W.2d at 837. See also In re Bates, 65 S.W.3d
133, 135 (Tex. App.—Amarillo 2001, orig. proceeding).
ANALYSIS
According to Relator, he filed his Motion for Reformation of Judgment-Sentence
on or about December 28, 2015, his Motion to Resentence on or about March 25, 2016,
and his Motion for Appointment of Counsel for Habeas Corpus on or about December
28, 2015. Copies of the motions are included with his petition for writ of mandamus.
However, due to his incarceration, the copies provided to this court are not filed
stamped by the trial court clerk.
Relator has not established that he brought his motions to the attention of the
trial court. He also has not shown that he requested a ruling on his motions and that the
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trial court refused to act. Based on the record before this court, Relator has not
demonstrated he is entitled to mandamus relief.
CONCLUSION
Relator’s petition for a writ of mandamus against Judge McClendon is denied.
Per Curiam
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