in Re Jerry Fuller ( 2009 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 16, 2009

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 16, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00291-CR  

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IN RE JERRY FULLER, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On April 1, 2009, relator, Jerry Fuller, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the Honorable Jim Wallace, presiding judge of the 263rd District Court of Harris County to grant the State=s motion to designate factual issues to be resolved with regard to his application for writ of habeas corpus and to designate such issues. 

Relator filed an application for writ of habeas corpus in the trial court.  On September 24, 2008, the Harris County District Attorney=s Office filed a motion requesting the trial court, pursuant to Article 11.07 ' 3(d) of the Texas Code of Criminal Procedure, to Adesignate that the issue of whether Applicant is actually innocent in cause number 9400553 needs to be resolved in the instant proceeding.@  See Tex. Code Crim. Proc. art. 11.07, ' 3(d) (Vernon Supp. 2008).  Relator claims, on September 29, 2008, he received an order from the trial court that the habeas corpus would be resolved in accordance with article 11.07, ' 3(d).^[1]      Relator contends the trial court has ministerial duties to grant the State=s motion to designate factual issues to be resolved and to designate such issues as required by article 11.07, ' 3(d).

In a criminal case, mandamus relief is authorized only if the relator establishes that (1) under the facts and the law, the act sought to be compelled is purely ministerial; and (2) he has no other adequate legal remedy.  State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding).  An act is ministerial Awhen the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment.@ State ex rel. Healy v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (orig. proceeding).  A[M]andamus may be appropriate to impel the consideration of a motion, the issuance of a ruling, an entry of a judgment or other act, the doing of which is not discretionary.@  White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982) (orig. proceeding).  Thus, mandamus will not issue to compel a particular result in what is manifestly a discretionary decision.  State ex rel. Rodriguez, 196 S.W.3d 454, 458 (Tex. App.CEl Paso 2006, orig. proceeding). 

Consideration of a motion properly filed and before the court is ministerial.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).  The relator establishes an abuse of discretion if 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.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App.CWaco 2003, orig. proceeding). 

Relator contends he has established the trial court abused its discretion because it has a legal duty to grant the State=s motion and to designate factual issues to be resolved.  Moreover, attaching the affidavit of an individual who attests to having  made telephone calls to the district attorney=s office and the trial court seeking a disposition of relator=s application, relator asserts the motion was brought to the attention of the trial court.  However, while a trial court has a ministerial duty to rule upon a motion that is properly and timely presented to it for a ruling, in general it has no ministerial duty to rule on that motion in a certain way.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).  Therefore, we are precluded from directing the trial court to grant the State=s motion. 

Upon receipt of an application for writ of habeas corpus challenging a final felony conviction, the attorney representing the State has 15 days to respond.  Tex. Code Crim. Proc. Art. 11.07, ' 3(b).  After the expiration of the time allowed for the State to respond, the trial court is allowed 20 days to determine whether the application contains allegations of controverted, previously unresolved facts material to the legality of the applicant=s confinement.  Id. ' 3(c).  If the trial court determines the application for writ of habeas corpus presents such issues, it Ashall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating issues of fact to be resolved.@  Id. ' 3(d).  Thus, the trial court has 35 days to enter an order designating issues after the filing date of an 11.07 application for writ of habeas corpus.  Article 11.07 requires the trial court to either (1) enter an order designating contested factual issues within 35 days of the receipt of the writ applicationCregardless of whether the State files a response; or (2) if there are no unresolved facts to be determined, to send the application and all associated materials to the Court of Criminal Appeals.  Gibson v. Dallas County Dist. Clerk, 275 S.W.3d 491, 492 (Tex. Crim. App. 2009) (orig. proceeding)

Because article 11.07 allows the trial court to designate, or not designate, factual issues, depending upon its determination of whether any factual issues exist, such action is discretionary.  A court of appeals abuses its discretion in granting a mandamus when the act sought to be compelled is not ministerial.  State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).  Therefore, we cannot compel the trial court to designate factual issues for resolution in the underlying habeas corpus proceeding. 

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator=s petition for writ of mandamus. 

PER CURIAM

Panel consists of Justices Seymore, Brown, and Sullivan. 

Do Not Publish — Tex. R. App. P. 47.2(b).

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   ^[1]  Relator has not included a copy of this order his mandamus record.  See Tex. R. App. P. 52.3(k)(1)(A) (requiring appendix to include certified or sworn copy of any order complained of, or any other document showing matter complained of); Id. 52.7(a)(1) (requiring record to include certified or sworn copy of every document that is material to relator=s claim for relief and that was filed in any underlying proceeding).