in Re Milton Jarrod Brown ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00347-CR
IN RE MILTON JARROD BROWN
Original Proceeding
MEMORANDUM OPINION
In this original proceeding,1 Relator Milton Jarrod Brown seeks mandamus relief
in the form of compelling the Respondent trial court judge to rule on Brown’s motion for
appointment of counsel in his post-conviction habeas proceeding. See TEX. CODE CRIM.
PROC. ANN. art. 1.051(d)(3) (West Supp. 2014). Brown alleges that his motion has been
pending for more than ninety days without a ruling.
1
The application (petition) for writ of mandamus lacks proof of service on the State. A copy of all
documents presented to the Court must be served on all parties (i.e., the trial court judge and the State
through the district attorney in this proceeding) and must contain proof of service. TEX. R. APP. P. 9.5, 52.2.
The petition also lacks most of the contents required by Rule 52. Id. 52.3, 52.7. It does not include the
certification required by Rule of Appellate Procedure 52.3(j). Id. 52.3(j). It lacks a record and an appendix.
Id. 52.3(k), 52.7. To expedite this matter, we invoke Rule of Appellate Procedure 2 to suspend these
requirements. Id. 2.
“A court with mandamus authority ‘will grant mandamus relief if relator can
demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator
has no other adequate legal remedy.’” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—Waco
2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99 (Tex.
Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed and before
the court is ministerial. State ex rel. Hill v. Ct. of Apps. for the 5th Dist., 34 S.W.3d 924, 927
(Tex. Crim. App. 2001) (orig. proceeding).
Mandamus may issue to compel a trial court to rule on a motion
which has been pending before the court for a reasonable period of time.
See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003,
orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo
2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225
S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain
mandamus relief for such refusal, a relator must establish: (1) the motion
was properly filed and has been pending for a reasonable time; (2) the
relator requested a ruling on the motion; and (3) the trial court refused to
rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
679. The mere filing of a motion with a trial court clerk does not equate to a request
that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680
(“Relator has made repeated requests for a ruling on its motion.”).
In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding) (emphasis
added).
A trial judge has a reasonable time to perform the ministerial duty of considering
and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228. But
that duty generally does not arise until the movant has brought the motion to the trial
judge’s attention, and mandamus will not lie unless the movant makes such a showing and the
In re Brown Page 2
trial judge then fails or refuses to rule within a reasonable time. See id. Also, the mere
filing of a pleading or letter with the clerk does not impute knowledge to the trial judge. See
In re Flores, No. 04-03-00449-CV, 2003 WL 21480964 (Tex. App.—San Antonio June 25,
2003, orig. proceeding) (mem. op.).
Brown bears the burden of providing a sufficient record to establish his right to
mandamus relief. See In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1, n.1 (Tex.
App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.); In re Blakeney, 254 S.W.3d 659,
661 (Tex. App.—Texarkana 2008, orig. proceeding). There is no record showing that
Brown has brought the matter to the attention of the trial judge and that the trial judge
has then failed or refused to rule within a reasonable time.
We deny the petition for writ of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed November 5, 2015
Do not publish
[OT06]
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