in Re Kim Wayne Burden

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00075-CR
IN RE KIM WAYNE BURDEN
Original Mandamus Proceeding
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
Kim Wayne Burden has filed a petition for a writ of mandamus asking this Court to
compel the trial judge of the 8th Judicial District Court of Delta County, Texas, to rule on six
motions filed with the district clerk. Because Burden has failed to show that any of the motions
were first presented to the trial court, we deny his petition.
Mandamus will issue “only when the mandamus record establishes (1) a clear abuse of
discretion, and (2) the absence of a clear and adequate remedy at law.” In re Blakeney, 254
S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878
S.W.2d 131, 132 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40
(Tex. 1992) (orig. proceeding)). “It is the relator’s burden to provide this Court with a sufficient
record to establish his or her right to mandamus relief.” Id. (citing Walker, 827 S.W.2d at 839–
40; In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig.
proceeding)); see TEX. R. APP. P. 52.3, 52.7(a).
“A trial court is required to consider and rule on a properly filed motion within a
reasonable period of time once a ruling has been requested.” In re Smith, No. 06-18-00003-CR,
2018 WL 508324, at *1 (Tex. App.—Texarkana Jan. 23, 2018, orig. proceeding) (mem. op., not
designated for publication).1 Even so, “before mandamus may issue, the relator must show that
the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or
refused to act.” In re Burden, No. 06-20-00111-CR, 2020 WL 6325062, at *1 (Tex. App.—
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“Although unpublished cases have no precedential value, we may take guidance from them ‘as an aid in developing
reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet.
ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
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Texarkana Oct. 29, 2020, orig. proceeding) (mem. op., not designated for publication) (citing
In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding)). As a
result, to show entitlement to mandamus relief for refusal to rule on a motion, “a relator must
establish that ‘(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.’” In re Smith,
2018 WL 508324, at *1 (quoting In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco
2008, orig. proceeding)). “Merely filing a motion or letter with the clerk does not impute
knowledge to the trial court.” Id. (citing In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San
Antonio 2004, orig. proceeding)). Rather, the record must show that it was “presented to the trial
court for ruling.” In re Frey, No. 06-20-00036-CR, 2020 WL 1145535, at *1 (Tex. App.—
Texarkana Mar. 10, 2020, orig. proceeding); see In re Burden, 2020 WL 6325062, at *1.
The record attached to Burden’s petition includes file-marked copies of six motions.2
Absent from the record is any proof that those motions were brought to the attention of the trial
court, as required. Because “[s]howing that a motion was filed with the court clerk does not
constitute proof that the motion was brought to the trial court’s attention or presented to the trial
court with a request for a ruling,” Burden has not shown that he requested a ruling on the
motions or that the trial court refused to rule on them. Id.We find that Burden has not provided this Court with a sufficient record to establish the
right to mandamus relief. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1); In re Burden, 2020 WL
2The record shows that Burden filed the following: (1) a February 22, 2022, file-marked motion for evidentiary
hearing, (2) a February 23 file-marked motion requesting judicial notice, (3) a March 3 file-marked motion to vacate
sentence, (4) an April 13 file-marked second addendum to the motion to vacate sentence, (5) a May 16 file-marked
third addendum to the motion to vacate or modify the sentence, and (6) a May 16 file-marked motion to compel.
The record also includes a motion for a speedy trial that was not file-marked.
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6325062, at *1; In re Frey, 2020 WL 1145535. As a result, we deny Burden’s petition for a writ
of mandamus.
Charles van Cleef
Justice
Date Submitted: May 31, 2022
Date Decided: June 1, 2022
Do Not Publish
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