in Re Kenya Niroba Landrum

IN THE
TENTH COURT OF APPEALS
No. 10-18-00271-CR
IN RE KENYA NIROBA LANDRUM
Original Proceeding
MEMORANDUM OPINION
In this original proceeding, Relator Kenya Niroba Landrum seeks to compel the
respondent, the Judge of the 19th Judicial District Court of McLennan County, to rule on
his request for appointment of counsel under Chapter 64 of the Code of Criminal
Procedure.1 See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West 2018).
“A court with mandamus authority ‘will grant mandamus relief if relator can
demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator
has no other adequate legal remedy.’” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—Waco
1 The petition for writ of mandamus has several procedural deficiencies. See TEX. R. APP. P. 52.3. It also
lacks a proper proof of service; a copy of all documents presented to the Court must be served on all parties
to the proceeding and must contain proof of service. Id. at 9.5. Because of our disposition and to expedite
it, however, we will implement Rule of Appellate Procedure 2 and suspend these rules in this proceeding.
Id. at 2.
2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99 (Tex.
Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed and before
the court is ministerial. State ex rel. Hill v. Ct. of App. for Fifth Dist., 34 S.W.3d 924, 927
(Tex. Crim. App. 2001) (orig. proceeding).
Mandamus may issue to compel a trial court to rule on a motion
which has been pending before the court for a reasonable period of time.
See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003,
orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo
2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225
S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain
mandamus relief for such refusal, a relator must establish: (1) the motion
was properly filed and has been pending for a reasonable time; (2) the
relator requested a ruling on the motion; and (3) the trial court refused to
rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
679. The mere filing of a motion with a trial court clerk does not equate to a request
that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680
(“Relator has made repeated requests for a ruling on its motion.”).
In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding) (emphasis
added).
A trial judge has a reasonable time to perform the ministerial duty of considering
and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228. But
that duty generally does not arise until the movant has brought the motion to the trial
judge’s attention, and mandamus will not lie unless the movant makes such a showing and the
trial judge then fails or refuses to rule within a reasonable time. See id. Also, the mere
filing of a matter with the clerk does not impute knowledge to the trial judge. See In re Flores,
No. 04-03-00449-CV, 2003 WL 21480964, at *1 (Tex. App.—San Antonio Jun. 25, 2003, orig.
In re Landrum Page 2
proceeding) (mem. op.).
Landrum bears the burden of providing a sufficient record to establish his right to
mandamus relief. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008,
orig. proceeding); see also In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1 n.1 (Tex.
App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.). There is no record showing
that Landrum has brought his request for appointment of counsel under Chapter 64 of
the Code of Criminal Procedure to the attention of the trial judge and that the trial judge
has then failed or refused to rule within a reasonable time.
Accordingly, we deny Landrum’s petition for writ of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed August 29, 2018
[OT06]
In re Landrum Page 3