in Re Linzale Greer ( 2021 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April
1, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00054-CR
IN RE LINZALE GREER, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
122nd District Court
Galveston County, Texas
Trial Court Cause No. 09CR3730
MEMORANDUM OPINION
On January 22, 2021, relator Linzale Greer filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the Honorable John Ellisor,
presiding judge of the 122nd District Court of Galveston County, to rule on relator’s
motion to obtain a copy of the trial transcript.
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). 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.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 In re Ramos, 598
S.W.3d 472, 473 (Tex. App.―Houston [14th Dist.] 2020, orig. proceeding). In a
criminal mandamus proceeding, a relator must provide the appellate court with either
a file stamped copy of the motion or other proof that the motion is, in fact, filed and
pending in the trial court. In re Gomez, 602 S.W.3d 71, 74 (Tex. App.―Houston
[14th Dist.] 2020, orig. proceeding); In re Flanigan, 578 S.W.3d 634, 626 (Tex.
App.―Houston [14th Dist.] 2019, orig. proceeding); Henry, 525 S.W.3d at 382. The
copy of relator’s motion does not bear a file stamp establishing that it is in fact
pending in the trial court.
Even if relator had shown that his motion is properly pending, he has not
demonstrated that the motion was brought to the attention of the trial court or how
long the motion has been pending since presentment. Filing a motion with a court
clerk does not show that the motion was brought to the trial court’s attention for a
2
ruling because the clerk’s knowledge is not imputed to the trial court. Ramos, 598
S.W.3 at 473. 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.
Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Wise, Hassan, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
3