in Re Phillip Guthrie

NUMBER 13-19-00479-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE PHILLIP GUTHRIE
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Perkes
Memorandum Opinion by Justice Perkes1
Relator Phillip Guthrie, proceeding pro se, filed a petition for writ of mandamus in
the above cause through which he seeks to compel the trial court to rule on his motion
for nunc pro tunc judgment or otherwise provide relator with jail time credit in accordance
with article 42.03 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 42.03, § 2(a); Ex parte Molina, 483 S.W.3d 24, 29 (Tex. Crim. App. 2016); see
also TEX. R. APP. P. 23.2(b).
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. When granting relief, the court must hand down an opinion as in any other case.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).
To be entitled to mandamus relief, the 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 purely ministerial act not involving a discretionary or judicial decision. In re Harris,
491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422
S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet
both requirements, then the petition for writ of mandamus should be denied. State ex rel.
Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007).
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)
(per curiam); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding); Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001, 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. In re Henry, 525 S.W.3d at 382; In re Layton, 257 S.W.3d 794,
795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d 885, 886 (Tex.
App.—San Antonio 2003, orig. proceeding).
It is the 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, the relator must
include a statement of facts supported by citations to “competent evidence included in the
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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. As the party seeking relief, the relator has the burden
of providing the Court with a sufficient mandamus record to establish his right to a writ of
mandamus. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.
proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.
52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the
required contents for the record).
In this case, the relator has failed to provide a complete appendix or record in
support of his petition for writ of mandamus and has therefore failed to meet his burden
to obtain relief. See Walker, 827 S.W.2d at 837; see generally TEX. R. APP. P. 52.3.
Relator has only filed a partial copy of his judgment of conviction in cause number
CR16000520-A in the 28th District Court of Nueces County, Texas; a file-stamped copy
of his motion for nunc pro tunc judgment, and a bench warrant. Based on the documents
before the Court, relator has neither shown that he is entitled to jail time credit or that the
trial court failed or refused to rule on relator’s motion for a nunc pro tunc judgment within
a reasonable time. Accordingly, we deny the petition for writ of mandamus. See In re
Harris, 491 S.W.3d at 334; In re McCann, 422 S.W.3d at 704.
GREGORY T. PERKES
Justice
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
7th day of October, 2019.
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