Opinion
No. 04-18-00381-CR
06-20-2018
IN RE RICHARD BRUCE DEBENEDETTO
MEMORANDUM OPINION
Original Mandamus Proceeding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice PETITION FOR WRIT OF MANDAMUS DENIED
This proceeding arises out of Cause No. A1481-1; A1482-1: A1483-1; A1484-1; A1485-1; A1486-1, styled The State of Texas v. Richard Bruce Debenedetto, pending in the 216th Judicial District Court, Kerr County, Texas, the Honorable N. Keith Williams presiding.
On June 8, 2018, relator Richard Bruce Debenedetto filed a petition for writ of mandamus asking this court to compel the trial court to rule on his application for writ of habeas corpus.
To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). 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 Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (per curiam); see also In re J.C.L., 10-11-00447-CV, 2012 WL 503665, at *4 (Tex. App.—Waco Feb. 15, 2012, orig. proceeding) (mem. op.) (concluding trial court has ministerial duty to consider and rule on relator's habeas corpus applications).
A relator has the burden of providing this court with a record sufficient to establish a right to mandamus relief. See TEX. R. APP. P. 52.7(a) (relator must file a certified or sworn copy of every document material to relator's claim for relief that was filed in the underlying proceeding). In a case such as the one before us, a relator has the burden to provide this court with a record showing the trial court was made aware of the motion at issue and that such motion has not been ruled on by the trial court for an unreasonable period of time. See In re Gallardo, 269 S.W.3d 643, 645 (Tex. App.—San Antonio 2008, orig. proceeding); In re Mendoza, 131 S.W.3d 167, 167-68 (Tex. App.—San Antonio 2004, orig. proceeding).
Here, the record includes, among other things, (1) file-stamped copies of the first page of relator's applications for writ of habeas corpus filed on April 25, 2018; (2) a file-stamped copy of a Memorandum of Law regarding his applications filed on May 2, 2018; (3) a letter to the District Attorney dated May 30, 2018 informing that office about his applications; (4) a Motion to Compel, which is not file-stamped, asking the trial court to order the State to produce proposed findings of fact and conclusions of law in response to his applications; and (5) the trial court's docket.
Although it appears relator filed his applications for writ of habeas corpus, he has not demonstrated his applications were properly presented to the trial court. Filing a document with the district clerk does not impute the clerk's knowledge of the filing to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). "A trial court is not required to consider a motion that has not been called to its attention by proper means." In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (per curiam). Therefore, relator has not shown he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM Do not publish