in Re Gerald J Durden ( 2018 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 2, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00593-CR
IN RE GERALD J. DURDEN, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
248th District Court
Harris County, Texas
Trial Court Cause No. 905464
MEMORANDUM OPINION
On July 20, 2018, relator Gerald J. Durden filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017);
see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Katherine Cabaniss, presiding judge of the 248th District Court of Harris
County, to rule on his motion for post-conviction DNA testing.
To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). A
trial court has a ministerial duty to consider and rule on motions properly filed and
pending before it, and mandamus may issue to compel the trial court to act. In re
Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig.
proceeding).
A relator must establish that 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 within a reasonable time. Id. It is relator’s burden to provide a sufficient
record to establish that he is entitled to relief. See Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding). Relator has failed to do so. Relator
attached a file-stamped copy of his motion for post-conviction DNA testing with his
petition, showing that the motion was filed on June 11, 2018. However, relator has
not shown that his motion was properly presented to the trial court for a ruling.
Filing a document with the district clerk does not impute the clerk’s knowledge of
the filing to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—El Paso
2001, orig. proceeding). Relator included three letters to the trial court which
contain requests for the trial court to rule on his motion, but none of the letters are
file-stamped. Thus, relator has not shown that he requested the trial court to rule on
his motion. The trial court is not required to consider a motion that has not been
called to its attention by proper means. Henry, 525 S.W.3d at 382.
2
Moreover, a trial court has a reasonable time in which to consider and rule on
a motion. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [14th Dist.] 2012,
orig. proceeding). Even if relator could establish that his motion for post-conviction
DNA testing had been presented to the trial court, relator has not shown that his
motion has been pending for an unreasonably long period of time since the
presentation of the motion without a ruling so as to justify the remedy of mandamus.
Relator has not shown that he is entitled to mandamus relief. Accordingly,
we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
3