in Re: John Wayne Charleston

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00037-CR
______________________________
IN RE:
JOHN WAYNE CHARLESTON
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
John Wayne Charleston has asked the Fifth Judicial District Court to convene a court of
inquiry. See generally TEX. CODE CRIM. PROC. ANN. art. 52.01 (Vernon 2006). Because
Charleston’s initial request, filed in October 2008, has not been acted on, he petitions this Court for
mandamus relief, to direct the trial court to rule on his request.1
Mandamus issues only when the mandamus record establishes (1) a clear abuse of
discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate
remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d
833, 839–40 (Tex. 1992).
Consideration of a motion that is properly filed and before the trial court is a ministerial
act, and mandamus may issue to compel the trial court to act. See Eli Lilly & Co. v. Marshall, 829
S.W.2d 157, 158 (Tex. 1992). A trial court is required to consider and rule on a properly filed and
pending motion within a reasonable time. See In re Shaw, 175 S.W.3d 901, 904 (Tex.
App.—Texarkana 2005, orig. proceeding); In re Tasby, 40 S.W.3d 190, 191 (Tex.
App.—Texarkana 2001, orig. proceeding). In proper cases, mandamus may issue to compel the
trial court to act. In re Kleven, 100 S.W.3d 643, 644 (Tex. App.—Texarkana 2003, orig.
1
Charleston’s prayer, at the conclusion of his petition for mandamus relief, asks us to ―ISSUE A WRIT OF
MANDAMUS COMPELLING A STATE INTEREST TEST AND A DECLARATORY JUDGMENT AGAINST
THE RESPONDENT DECLARING THAT THE RESPONDENT HAS VIOLATED THE RELATOR’S
CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH[] AND SET ORDER RESPONDENT IMPLY [sic] TO ART. 52[.01].‖ From the text of his
petition, though, we infer that he seeks to compel the trial court to rule on his request for a court of inquiry.
2
proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997,
orig. proceeding); see also Marshall, 829 S.W.2d at 158 (trial court abuses discretion by refusing
to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex.
App.—Houston [14th Dist.] 1990, orig. proceeding) (mandamus an appropriate remedy to require
trial court to hold hearing and exercise discretion).2
Determining what time period is reasonable is not subject to exact formulation. Whether
the trial court has acted within a reasonable period of time depends on the circumstances of the
case. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding). Moreover, no bright line separates a reasonable time period from an unreasonable
one. In re Keeter, 134 S.W.3d 250, 253 (Tex. App.—Waco 2003, orig. proceeding); In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). What is a
reasonable time to rule is dependent on a myriad of criteria, not the least of which is the trial
court’s actual knowledge of the motion, its overt refusal to act on same, the state of the court’s
docket, and the existence of other judicial and administrative matters which must be addressed
first. Ex parte Bates, 65 S.W.3d 133 (Tex. App.—Amarillo 2001, orig. proceeding). The trial
court’s inherent power to control its own docket must also be factored into the mix. See Ho v.
Univ. of Tex. at Arlington, 984 S.W.2d 672, 694–95 (Tex. App.—Amarillo 1998, pet. denied)
2
While we have jurisdiction to direct the trial court to make a decision, we may not tell the court what that decision
should be. Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962); State ex rel. Hill v. Court of Appeals
for Fifth Dist., 34 S.W.3d 924, 927 n.3 (Tex. Crim. App. 2001); O’Donniley v. Golden, 860 S.W.2d 267, 269–70 (Tex.
App.—Tyler 1993, orig. proceeding).
3
(court has inherent authority to control its own docket).
From the record before us, it appears that, on October 24, 2008, Charleston filed his request
that a court of inquiry be convened.3 On or about June 16, 2009, he wrote the trial court asking
the status of his request; on December 15, 2009, he sent a document to the trial court asking ―for a
hearing and ruling on his complaint seeking a court of inquiry.‖ On January 10, 2010, he filed a
motion with the trial court asking the trial court ―ORDER CONVENED THE PROCEEDINGS
OF A COURT OF INQUIRY.‖
Since Charleston filed his petition to this Court, we have received notice that the trial judge
has recused himself, citing his involvement as Charleston’s appellate counsel following
Charleston’s conviction. We are also advised that a visiting judge has since been appointed and
that the visiting judge has scheduled a hearing for May 26, 2010, to address the issue of
Charleston’s standing to request a court of inquiry. Since it appears that the visiting judge is
proceeding on Charleston’s motion below, we cannot say the visiting judge is acting at an
3
Whether to convene a court of inquiry is a discretionary matter:
When a judge of any district court of this state, acting in his capacity as magistrate, has probable
cause to believe that an offense has been committed against the laws of this state, he may request
that the presiding judge of the administrative judicial district appoint a district judge to commence a
Court of Inquiry.
TEX. CODE CRIM. PROC. ANN. art. 52.01(a).
4
unreasonable pace.4 We do not grant mandamus relief when it would be of no practical effect, or
―if for any reason it would be useless or unavailing.‖ Dow Chem. Co. v. Garcia, 909 S.W.2d 503,
505 (Tex. 1995) (quoting Holcombe v. Fowler, 118 Tex. 42, 9 S.W.2d 1028 (1928)).
We deny Charleston’s petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: May 11, 2010
Date Decided: May 12, 2010
Do Not Publish
4
We point out that, while Charleston’s initial motion to the trial court was filed almost eighteen months ago, only in
December 2009, fourteen months after filing his motion, did Charleston ask the trial court to have a hearing and rule
on the motion.
5