in Re: David Ross Ramires

NO. 12-21-00151-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
DAVID ROSS RAMIRES, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
David Ross Ramires, Relator, requests a writ of mandamus directing the trial court to
grant the relief sought in his Article 11.072 application for writ of habeas corpus in trial court
cause number 2021040089 and set aside his convictions in trial court cause numbers 19696 and
19697. 1 We deny the writ.
BACKGROUND
Relator was charged by indictment with felony possession of a controlled substance and
driving while intoxicated (DWI) with a child passenger. Pursuant to a plea bargain agreement
with the State, he pleaded “guilty,” and the trial court assessed his punishment at imprisonment
for ten years, suspended for a term of six years, in the possession case, and confinement in a state
jail facility for two years, suspended for a term of five years, in the DWI case. Subsequently, the
State filed a motion to revoke Relator’s community supervision.
On April 8, 2021, Relator’s new counsel filed an application for writ of habeas corpus in
the trial court under code of criminal procedure Article 11.072, asserting that Relator’s guilty
plea was involuntary and that he was denied discovery. On April 18, Relator filed an original
proceeding in this Court requesting a writ of mandamus directing the trial court to issue a writ of
1
The Respondent named in the petition is the Honorable Chris R. Day, Judge of the 2nd Judicial District
Court in Cherokee County, Texas. The Real Party in Interest is the State of Texas.
habeas corpus. On July 30, we denied the petition, observing that the writ issued by operation of
law when the application was filed. 2
On September 15, Relator filed this original proceeding. On October 27, the State filed a
response. On October 29, Relator filed an objection and motion to strike the State’s response
based on its failure to comply with the rules of appellate procedure. Because we decide the issues
in this case based solely on Relator’s petition, we dismiss the motion to strike as moot.
FAILURE TO ENTER TIMELY ORDER
In Relator’s first issue, he contends that he is entitled to mandamus relief because
Respondent failed to enter a timely order granting or denying the relief sought in his habeas
application. We disagree.
Mandamus is an extraordinary remedy that is available only in limited circumstances.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In a criminal case, a relator is entitled to
mandamus relief only if he establishes that (1) he has no adequate remedy at law, and (2) the act
he seeks to compel is ministerial. In re ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App.
2013); Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011). An act is ministerial
when the law spells out the official’s duty with such certainty that nothing is left to the exercise
of discretion. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).
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 court to act. In re Pete, 589 S.W.3d
320, 321 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding). Before mandamus may
issue, a relator must establish that the 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. A relator has the burden to provide a sufficient record to establish that he is entitled to
relief. Id.In arguing that he is entitled to mandamus relief, Relator observes that he filed his
application for writ of habeas corpus in the trial court, the State filed a timely answer, 3 and the
2
See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 4(a) (West 2005).
3
Under Article 11.072, the state is allowed to file an answer within thirty days of service of the habeas
application. TEX. CODE CRIM. PROC. ANN. art. 11.072 § 5(b), (c) (West 2005).
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court failed to timely enter an order granting or denying relief. 4 However, although Relator
attached a file-stamped copy of the application to his mandamus petition, he has not
demonstrated that his application was properly presented to the trial court for a ruling. Showing
that a motion was filed with the court clerk does not constitute proof that it was brought to the
trial court’s attention or presented to the court with a request for a ruling. In re Blakeney, 254
S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding). Because Relator has not
shown that his application was properly presented to the trial court for a ruling, he has failed to
meet his burden of establishing that he is entitled to relief. See Pete, 589 S.W.3d at 321.
CASE TRANSFER
Also in his first issue, Relator raises the issue of a dispute regarding the court in which
his habeas proceeding is pending. His community supervision was imposed in the 2nd Judicial
District Court, so he appropriately filed his habeas application in that court. 5 However, the State
filed its answer in the 369th Judicial District Court, citing an attached docketing order that
governs the distribution of post-judgment cases in the Cherokee County district courts in which
no current district judge entered the original judgment. In his petition, Relator argues that only
the 2nd Judicial District Court may enter the order granting or denying habeas relief in this case.
We cannot address this issue because it is not ripe for our review. The courts of this
state are not empowered to give advisory opinions. Patterson v. Planned Parenthood of
Houston and Southeast Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998). This prohibition extends
to cases that are not yet ripe. Id. A case is not ripe when its resolution depends on contingent or
hypothetical facts, or upon events that have not yet come to pass. Id. In this case, Relator
does not claim that a court other than the 2nd Judicial District Court entered an order granting or
denying habeas relief. Consequently, we conclude that the complaint is not ripe and we cannot
give an advisory opinion in the matter. See id.
4“Not later than the 60th day after the day on which the state’s answer is filed, the trial court shall enter a
written order granting or denying the relief sought in the application.” Id. § 6(a) (West 2005).
5
An application filed under Article 11.072 “must be filed with the clerk of the court in which community
supervision was imposed.” Id. § 2(a) (West 2005).
3
EFFECT OF LAPSED TIME LIMIT ON JURISDICTION
In Relator’s second issue, he argues that when the legislatively prescribed time expired,
the trial court lost its jurisdiction to enter the order. Consequently, he argues that his right to fair
process was violated and we must order Respondent to set aside his convictions.
We cannot conclude that the trial court’s failure to enter an order within the legislatively
prescribed time defeats its jurisdiction in this case. The general rule is that where jurisdiction is
once lawfully and properly acquired, no subsequent fact or event in the case serves to defeat that
jurisdiction. Flynt v. Garcia, 587 S.W.2d 109, 109-10 (Tex. 1979). We see no reason why the
general rule should not apply in an Article 11.072 case in which the trial court failed to timely
enter its order, and Appellant points to none. Rather, in support of his contention, Relator cites
Ex parte Tomlinson as “surmising that had the trial court’s order issued outside ‘the statutory
period’ the appeal would not properly be before that court of appeals.” See Ex parte Tomlinson,
295 S.W.3d 412, 418 n.4 (Tex. App.—Corpus Christi 2009, no pet.) (citing Awadelkariem v.
State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998)). In Tomlinson, a visiting judge granted
Tomlinson’s Article 11.072 application for writ of habeas corpus and signed an order granting
him a new trial. See id. at 416. Subsequently, the court’s presiding judge granted the State’s
motion for reconsideration and denied Tomlinson’s application. See id. at 417. On appeal, the
parties did not dispute the court’s jurisdiction to deny the application, but the court of appeals
observed in a footnote that the order denying the application was properly before the court
because it was entered within the time prescribed by Article 11.072. See id. at 418 n.4.
Even if this footnote in Tomlinson supports Relator’s contention that the trial court here
lost its jurisdiction when the legislatively prescribed time expired, the authority cited by the court
of appeals in that case has since been overruled. See Kirk v. State, 454 S.W.3d 511, 515 (Tex.
Crim. App. 2015) (overruling Awadelkariem in pertinent part). In Awadelkariem, the issue was
whether the trial court could rescind an order granting a motion for new trial in a criminal case.
See Awadelkariem, 974 S.W.2d at 722. The court of criminal appeals held that such an order
may be rescinded, but only during the seventy-five-day period during which the court was
permitted by the appellate rules to rule on the motion. Id. at 728. Notably, the court did not hold
that the trial court lost its jurisdiction after the seventy-five-day period, but instead based the
limit on the court’s “review of the issue, our appellate rules, the Texas Supreme Court’s
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pronouncement [of a seventy-five-day limitation on vacating the grant of a new trial in a civil
case], and the authority in other jurisdictions[.]” See id.In Kirk, the State sought to overturn the time limit pronounced in Awadelkariem. The
court of criminal appeals noted that in Awadelkariem, it relied heavily on Texas Supreme Court
caselaw in imposing the time limit. See Kirk, 454 S.W.3d at 513. It further noted that the
supreme court had since overruled that caselaw. See id. Finding the supreme court’s reasoning
persuasive, the court of criminal appeals followed suit and abandoned the time limit imposed in
Awadelkariem. See id. at 515. Thus, Relator’s only cited authority for his contention that the trial
court here no longer has jurisdiction to enter an order in this case relies on authority that has been
overruled to any extent it could have supported that contention. See id.; Tomlinson, 295 S.W.3d
at 418 n.4. Because Relator’s contention is not supported by persuasive authority, and we see no
reason not to follow the general rule of jurisdiction retention, we conclude that the trial court
retains jurisdiction in this case. See Flynt, 587 S.W.2d at 109-10. Accordingly, Relator’s second
issue presents no grounds for mandamus relief.
DISPOSITION
Having determined that Relator failed to establish his entitlement to mandamus relief, we
deny the petition for writ of mandamus. We lift our stay of October 29, 2021.
GREG NEELEY
Justice
Opinion delivered December 8, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 8, 2021
NO. 12-21-00151-CR
DAVID ROSS RAMIRES,
Relator
V.
HON. CHRIS R. DAY,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
David Ross Ramires; who is the relator in appellate cause number 12-21-00151-CR and the
applicant in trial court cause number 2021040089, originating in the 2nd Judicial District Court
of Cherokee County, Texas. Said petition for writ of mandamus having been filed herein on
October 28, 2021, and the same having been duly considered, because it is the opinion of this
Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED
that the said petition for writ of mandamus be, and the same is, hereby denied.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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