in Re Edward Charles Holland ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00263-CR
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IN RE EDWARD CHARLES HOLLAND
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Original Proceeding
Criminal District Court of Jefferson County, Texas
Trial Cause Nos. 91161, 83949, 88140
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MEMORANDUM OPINION
On May 4, 2022, we denied Edward Charles Holland’s petition for
mandamus, a petition in which he asked that this Court order the trial
court to vacate a cumulation order that relates to a judgment the trial
court signed in 2004. 1 Holland then filed a subsequent petition seeking
mandamus relief, claiming that he mailed a motion to vacate a void
1See In re Holland, No. 09-22-00129-CR, 2022 WL 1395319, at *2
(Tex. App.—Beaumont May 4, 2022, orig. proceeding) (mem. op., not
designated for publication).
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cumulation order to the trial court on June 8, 2022. We deny the
subsequent petition. 2
To obtain relief through a petition for mandamus in a criminal case,
the relator must show that he does not have an adequate remedy by
appeal and that he seeks to compel a ministerial act not involving a
discretionary or judicial decision. 3 To establish the trial court abused its
discretion in failing to rule on a motion, the relator must establish the
trial court: (1) had a legal duty to perform a ministerial act, (2) was asked
to perform the act, and (3) failed or refused to do so within a reasonable
time. 4 A relator must support his mandamus petition with a record
containing every document material to his claim for relief. 5
Whether a reasonable period lapsed depends on the circumstances
of the case, circumstances that include whether the trial court knew of
the motion, whether the trial court overtly refused to act, the state of the
court’s docket, and whether there were other judicial and administrative
2See Tex. R. App. P. 52.8(a).
3State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.
proceeding).
4In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.
proceeding).
5See Tex. R. App. P. 52.7.
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matters that must be addressed first. 6 Holland argues that we should
deem the trial court denied the motion because the trial court failed to
rule on the motion within a reasonable time. He neither provides
documentation to support his claim that he properly filed the motion and
brought it to the attention of the trial court, nor does he support his
petition with authority that slightly more than two months is an
unreasonable period of time for the successor judge to consider and rule
on a request to issue a judgment nunc pro tunc.
Holland further argues that the cumulation order in the judgment
signed in Trial Cause Number 91161 in 2004 by the predecessor judge of
the Criminal District Court of Jefferson County is void because the trial
court when orally pronouncing his sentence failed to state when the
sentence is to begin or when it will cease to operate. Holland concedes he
failed to object to the cumulation order when the trial court orally
pronounced that his 30-year sentence would run consecutive to his
sentences in Cause Number 83949 for the felony offense of burglary of a
habitation out of the Criminal District Court dated February 2, 2002, and
6In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo 2003,
orig. proceeding).
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that it would also run consecutive to his conviction in Cause Number
88140 out of the Criminal District Court dated February 2, 2004. We
resolved this issue against Holland when we ruled on his previous
petition. 7
Holland also argues the successor judge has a ministerial duty to
vacate the cumulation order because the evidence at his trial failed to
link Holland to the previous convictions. But claims alleging improper
cumulation are forfeited unless they were preserved and then raised by
the defendant in a direct appeal. 8
Holland has not established he is entitled to relief on his petition.
The petition for a writ of mandamus is denied. 9
PETITION DENIED.
PER CURIAM
Submitted on August 23, 2022
Opinion Delivered August 24, 2022
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
7SeeIn re Holland, No. 09-22-00129-CR, 2022 WL 1395319, at *2
(Tex. App.—Beaumont May 4, 2022, orig. proceeding) (mem. op., not
designated for publication).
8See Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004).
9See Tex. R. App. P. 52.8(a).
4