in Re Jovany J. Paredes ( 2018 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 18, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00854-CR
IN RE JOVANY J. PAREDES, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
337th District Court
Harris County, Texas
Trial Court Cause No. 1241896
MEMORANDUM OPINION
On October 2, 2018, relator Jovany J. Paredes 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 presiding
judge of the 337th District Court of Harris County, to rule on four motions of relator
that were allegedly received by Chris Daniel, the Harris County District Clerk on
August 16, 2018.
To be entitled to mandamus relief, a relator must show (1) the relator has no
adequate remedy at law for obtaining the relief sought; and (2) the relator seeks to
compel 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
when brought to the court’s attention, and mandamus may issue to compel the trial
court to act. In re Henry, 525 S.W.3d 381 (Tex. App.–Houston [14th Dist.] 2017,
orig. proceeding). A trial court has a reasonable time within which to consider a
motion and to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st
Dist.] 2012, orig. proceeding).1
As the party seeking relief, relator has the burden of providing this court with
a sufficient record to establish his right to mandamus relief. See Walker v. Packer,
827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.7(a)(1)
(relator must file with petition “a certified or sworn copy of every document that is
material to the relator’s claim for relief and that was filed in any underlying
proceeding”).
To be entitled to mandamus relief for a trial court’s failure to rule on a motion,
the record must show both that the motion was filed and brought to the attention of
the judge for a ruling. See In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston
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Many factors determine whether a trial court has ruled within a reasonable time. Among
these are “the trial court’s actual knowledge of the motion, whether its refusal to act is overt, the
state of the court’s docket, and the existence of other judicial and administrative matters which
must be addressed first.” In re Chavez, 62 S.W.3d 225, 228–29 (Tex. App.—Amarillo 2001, orig.
proceeding). The trial court’s inherent power to control its own docket must also be given due
consideration. Id. at 228.
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[14th Dist.] 2016, orig. proceeding) (per curiam); In re Layton, 257 S.W.3d 794, 795
(Tex. App.—Amarillo 2008, orig. proceeding). To establish that the motion was
filed, relator must provide either a file stamped copy of the motion or other proof
that the motion was mailed to the clerk at a proper address with proper postage. See
In re Bishop, No. 14-06-00636-CV, 2006 WL 2434200, at *1 (Tex. App.—Houston
[14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam) (mem. op.). Moreover,
merely “[f]iling a document with the district clerk does not mean the trial court is aware
of it; nor is the clerk’s knowledge imputed to the trial court.” In re Querishi, No. 14-11-
00294-CV, 2011 WL 1365002, at *1 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011,
orig. proceeding) (per curiam) (mem. op., not designated for publication) (citing In re
Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding)).
“Presenting the motion, along with a request for a hearing, is required to let the court
know that the defendant wants the trial court to act on the motion and whether the
defendant would like a hearing on the motion.” Rozell v. State, 176 S.W.3d 228, 230
(Tex. Crim. App. 2005).
Attached to relator’s petition are copies of the four motions at issue but none
of these motions bear a file stamp indicating that they were filed or received by the
district clerk. Also attached to the petition is a return receipt indicating an article
addressed to district clerk Chris Daniel was received by Arthur Simpson on August
16, 2018. The receipt, however, does not identify the article that was received.
Additionally, relator has not provided any evidence establishing that the motions at
issue were brought to the trial court’s attention for hearing or ruling. Thus, relator
has not provided this court with a record showing that the four motions were both
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filed and brought to the attention of the trial court for a ruling. Accordingly, we deny
relator’s petition for writ of mandamus.2
PER CURIAM
Panel consists of Justices Donovan, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).
2
Relator also filed a motion for leave to file his application for a writ of mandamus. The
Texas Rules of Appellate Procedure do not require the filing of such a motion. Accordingly, this
motion is denied as moot.
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