in Re Michael Anthony Moore ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00420-CR
IN RE MICHAEL ANTHONY MOORE
Original Proceeding
MEMORANDUM OPINION
In this original proceeding,1 Relator Michael Anthony Moore seeks mandamus
relief in the form of compelling the Respondent trial judge to rule on Moore’s motion
for relief from void judgment and compelling Respondent to grant the motion and to
set aside Moore’s underlying judgment of conviction.2
1
Accompanying Moore’s petition for writ of mandamus is his motion for leave to file petition for writ of
mandamus. The motion for leave is dismissed as moot because leave is no longer required to file an
original proceeding in an intermediate court of appeals.
2 Moore’s petition for writ of mandamus has numerous procedural deficiencies; it lacks most of the
contents required by Rule 52. See TEX. R. APP. P. 52.3. It does not include the certification required by
Rule 52.3(j). See id. 52.3(j). It lacks an appendix and a record. See id. 52.3(k), 52.7. The petition lacks proof
of service on the Respondent trial judge and on the Brazos County District Attorney, a Real-Party-in-
Interest, and while the motion for leave has proof of service for Respondent, it lacks proof of service for
the Brazos County District Attorney. See id. 9.5, 52.2. A copy of all documents presented to the Court
“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)).
While we have jurisdiction to direct a trial court to exercise its discretion, we may
not tell the trial court what its decision should be. See In re Blakeney, 254 S.W.3d 659, 661
(Tex. App.—Texarkana 2008, orig. proceeding); In re Shredder Co., 225 S.W.3d 676, 680
(Tex. App.—El Paso 2006, orig. proceeding); see also In re Birdwell, 224 S.W.3d 864, 865
(Tex. App.—Waco 2007, orig. proceeding) (“Although we may compel a court to
consider a motion, we do not require that the judge rule in a certain way.”). But
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
must be served on all parties to the proceeding and must contain proof of service. Id. 9.5. Because of our
disposition and to expedite it, we will implement Rule 2 and suspend these rules. Id. 2.
In re Moore Page 2
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 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).
Moore bears the burden of providing this Court with 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.);
Blakeney, 254 S.W.3d at 661. There is no record showing that Moore 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. And to the extent that Moore requests us to order the
trial court to grant his motion and to set aside his underlying judgment of conviction, as
explained above, we lack authority to grant such mandamus relief.
In re Moore Page 3
We deny the petition for writ of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied; motion for leave dismissed as moot
Opinion delivered and filed December 19, 2013
Do not publish
[OT06]
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