in Re Rodolfo Rivera ( 2011 )

NUMBERS 13-11-00742-CR AND 13-11-00743-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE RODOLFO RIVERA
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion Per Curiam1
Relator, Rodolfo Rivera, pro se, filed a petition for writ of mandamus in the above
causes on November 23, 2011.2 Relator contends that the trial court has failed to rule on
1
See TEX. R. APP. P. 52.8(d) (―When denying relief, the court may hand down an opinion but is not
required to do so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2
Appellate cause number 13-11-00742-CR arises from trial court cause number 08-CR-2308-B,
whereas appellate cause number 13-11-00743-CR arises from trial court cause number 06-CR-2429-B.
Both matters originate from proceedings in the 138th District Court of Cameron County, Texas, the
Honorable Arturo Cisneros Nelson presiding. This Court has previously considered and denied similar
his ―Motion Nunc Pro Tunc,‖ which relator alleges that he filed on October 10, 2011.
Relator contends that the ―lack of timely response‖ in ruling on the motion has prejudiced
his ability to present a defense to the charges against him. Relator seeks a writ directing
the trial court to rule on his motion.
To be entitled to mandamus relief, relator must establish both 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). If relator fails to meet both of these requirements, then the petition for writ of
mandamus should be denied. See id.
It is relator’s burden to properly request and show entitlement to mandamus relief.
Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (―Even a pro se applicant for a writ of mandamus must show himself entitled
to the extraordinary relief he seeks.‖). In addition to other requirements, relator must
include a statement of facts supported by citations to ―competent evidence included in the
appendix or record,‖ and must also provide ―a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the appendix or record.”
See generally TEX. R. APP. P. 52.3. In this regard, it is clear that relator must furnish an
appendix or record sufficient to support the claim for mandamus relief. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see TEX. R. APP. P.
original proceedings filed by relator. See In re Rivera, Nos. 13-11-00666-CR and 13-11-00667-CR, 2011
Tex. App. LEXIS 8346, at **5–6 (Tex. App.—Corpus Christi Oct. 19, 2011, orig. proceeding) (per curiam).
The current filings reference these other original proceedings, but appear to be new petitions rather than
motions for rehearing. Accordingly, we have docketed these matters separately.
2
52.3(k) (specifying the required contents for the appendix); id. R. 52.7(a) (specifying the
required contents for the record). Moreover, relator must certify that he has reviewed the
petition and concluded that every factual statement in the petition is supported by
competent evidence included in the appendix or record. See id. R. 52.3(j).
The consideration of a motion that is properly filed and before the court is a
ministerial act. See State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d
924, 927 (Tex. Crim. App. 2001) (orig. proceeding); State ex rel. Curry v. Gray, 726
S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding) (op. on reh’g). A trial court is
required to consider and rule on a properly filed and pending motion within a reasonable
time. See In re Blakeney, 254 S.W.3d 659, 663 (Tex. App.—Texarkana 2008, orig.
proceeding); 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). The determination regarding what constitutes a reasonable period of time
to rule on a motion is dependent upon several factors, including the trial court’s actual
knowledge of the motion, its overt refusal to act, the state of the court’s docket, and the
existence of other judicial and administrative matters which must be addressed first.
See In re Blakeney, 254 S.W.3d at 661; Ex parte Bates, 65 S.W.3d 133 (Tex.
App.—Amarillo 2001, orig. proceeding).
To obtain mandamus relief for the refusal to rule, 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 In re
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Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn,
137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228. Showing that a motion was filed
with the 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. See In re
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); In re
Hearn, 137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228.
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has not met his burden to obtain
mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Relator has not
provided the Court with a record or appendix showing that he filed the motion with the trial
court or asked the trial court to rule on the motion. See TEX. R. APP. P. 52.7(a)(1)
(requiring relator to file with petition a certified or sworn copy of every document material
to relator’s claim for relief and filed in any underlying proceeding); In re Chavez, 62
S.W.3d at 228. Moreover, even if we were to accept relator’s allegations as true, relator
has offered no legal authority or evidence showing that the alleged delay in ruling
constitutes an unreasonable period of time for the trial court to consider the motion. And
finally, even if we were to agree that relator is entitled to mandamus relief to compel the
trial court to rule on his motion, we would not direct the trial court to rule on the motion in
a certain way. See State ex rel. Hill, 34 S.W.3d at 927; In re Blakeney, 254 S.W.3d at
661.
The Court, having examined and fully considered the petition for writ of
mandamus, is of the opinion that relator has not met his burden to obtain relief.
4
Accordingly, the petition for writ of mandamus in these causes is DENIED. See TEX. R.
APP. P. 52.8.
IT IS SO ORDERED.
PER CURIAM
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of November, 2011.
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