in Re Vector Thorn ( 2014 )

Petition for Writ of Prohibition and Writ of Mandamus Denied, Petition for
Writ of Habeas Corpus Dismissed, and Memorandum Opinion filed
March 13, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00190-CR
NO. 14-14-00191-CR
NO. 14-14-00192-CR
IN RE VECTOR THORN, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
177th District Court
Harris County, Texas
Trial Court Cause No. 1398463
MEMORANDUM OPINION
On March 5, 2014, relator Vector Thorn filed a petition for writ of
prohibition, writ of mandamus, and writ of habeas corpus in this Court. See Tex.
Gov’t Code § 22.221; see also Tex. R. App. P. 52. In the petition, relator makes
various assertions and requests for relief concerning an underlying criminal
proceeding pending in the 177th District Court of Harris County.
As an initial matter, relator’s petition does not include the contents or adhere
to the form required in an original proceeding in this Court. See Tex. R. App. P.
52.3, 52.7. Among the various procedural deficiencies in relator’s petition, relator
fails to provide an appendix or record containing documentation pertaining to most
of the matters of which relator complains. See Tex. R. App. P. 52.3(j) (requiring
relator to certify that every factual statement in the petition is supported by
competent evidence in the appendix or record), 52.3(k)(1)(A) (requiring relator to
include a certified or sworn copy of any order or other document made the subject
of relator’s complaint), 52.7(a)(1) (requiring relator to include a certified or sworn
copy of every document material to relator’s claim for relief that was filed in the
underlying proceeding). Relator’s failure to comply with the applicable procedural
rules is, by itself, a sufficient reason to deny his petition. See In re Huag, No. 14-
04-01077-CV, 2005 WL 171456, *1 (Tex. App.—Houston [14th Dist.] Jan. 27,
2005, orig. proceeding) (mem. op. per curiam) (denying petition for the sole reason
that it did not comply with Rule 52.3); see also Canton-Carter v. Baylor Coll. of
Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“The
law is well established that pro se litigants are held to the same standards as
licensed attorneys and must comply with all applicable rules of procedure.”).
Even if this Court were to disregard relator’s failure to adhere to the
mandatory procedural rules, we could not grant relator his requested relief. Relator
first seeks a writ of prohibition on the grounds that the trial court lacks jurisdiction
over his case. “A writ of prohibition is proper to prevent a trial court from acting
when the court lacks jurisdiction.” In re Sistrunk, 142 S.W.3d 497, 500 (Tex.
App.—Houston [14th Dist.] 2004, orig. proceeding). Relator, however, bears the
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burden to prove he is entitled to a writ of prohibition because the trial court lacks
jurisdiction. See id. (noting same principles control the use of a writ of mandamus
and writ of prohibition when invoked to correct unlawful assumption of
jurisdiction); see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding) (burden to demonstrate entitlement to mandamus is on the relator).
Here, relator merely asserts the trial court lacks jurisdiction, without reference to
record documents or citations to applicable legal precedent. Accordingly, relator
has not demonstrated his entitlement to a writ of prohibition.
Relator next seeks a writ of mandamus to compel the trial court to rule on
two motions purportedly filed by relator. To be entitled to mandamus relief with
respect to a criminal law matter, relator must show that he has no adequate remedy
at law to redress his alleged harm, and that what he seeks to compel is a ministerial
act, not involving a discretionary or judicial decision. 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). The act of a trial court considering and ruling on a
motion that is properly filed and before it is a ministerial act, and, in appropriate
cases, mandamus may issue to compel a trial court to act on a motion. In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding);
In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding). To obtain mandamus relief based on a trial court’s failure or refusal to
act on a motion, the relator must show that the trial court: (1) had a legal duty to
rule; (2) was asked to rule; and (3) failed or refused to do so. See O’Connor v. First
Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Dimas,
88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding).
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It is relator’s burden to provide the Court with a sufficient record to establish
the right to mandamus relief. See In re Ford Motor Co., 165 S.W.3d 315, 317
(Tex. 2005) (per curiam) (orig. proceeding); Walker, 827 S.W.2d at 837; see also
Young, 236 S.W.3d at 210; In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—
Amarillo 2003, orig. proceeding). A party who complains about a trial court’s
refusal to rule on a pending motion must show that the matter was brought to the
attention of the trial court. Blakeney, 254 S.W.3d at 662; Hearn, 137 S.W.3d at
685. Merely filing a motion with a court clerk does not show that the motion was
brought to the trial court’s attention, because the clerk’s knowledge is not imputed
to the trial court. Blakeney, 254 S.W.3d at 662; In re Chavez, 62 S.W.3d 225, 228
(Tex. App.—Amarillo 2001, orig. proceeding).
Relator does not make the required showing. All relator provides are copies
of the documents purportedly filed with the trial court. Neither of the documents is
certified or file-stamped, or otherwise bears any indication on its face that it
actually was received, let alone presented to the trial court. This is insufficient for
relator to satisfy his burden. See In re Risley, No. 14-06-01005-CV, 2006 WL
3486823, *2 (Tex. App.—Houston [14th Dist.] Dec. 5, 2006, orig. proceeding)
(mem. op. per curiam) (stating relator’s “copies of his subsequent motions and
letters to the clerk are not certified and do not reflect a file stamp; therefore, the
copies do not evidence that relator made the court aware of his subsequent motions
nor that he asked the court to rule and it refused”); see also Villarreal, 96 S.W.3d
at 710 (mailing of application deemed insufficient because it did not establish,
inter alia, “whether it was received by the district court, and the date on which it
was received (assuming it was received)”).
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Finally, relator seeks a writ of habeas corpus, asserting various complaints
about the conduct of proceedings in the underlying prosecution. We are unable to
consider relator’s petition for writ of habeas corpus in this criminal case, however,
because our habeas jurisdiction extends solely to situations in which a relator’s
restraint of liberty arises from a violation of an order, judgment, or decree of a
court or judge in a civil case. See Tex. Gov’t Code § 22.221(d).
Therefore, we dismiss relator’s petition for writ of habeas corpus for lack of
jurisdiction, and we deny relator’s petition for writ of prohibition and writ of
mandamus.
PER CURIAM
Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
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