Opinion
14-21-00387-CR
09-14-2021
IN RE KENNETH RAY SOWELL, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 262nd District Court Harris County, Texas Trial Court Cause No. 1007515
Panel consists of Justices Wise, Jewell, and Spain. (Spain, J., dissenting).
MEMORANDUM MAJORITY OPINION
PER CURIAM
On July 15, 2021, relator Kenneth Ray Sowell filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App.P. 52. In the petition, relator complains that the presiding judge of the 262nd District Court of Harris County has not ruled on his motion for nunc pro tunc judgment correcting the affirmative finding that a weapon was used during the commission of the offense.
Relator titled his filing in this court as a petition for writ of habeas corpus. However, he seeks mandamus relief, not habeas corpus relief.
To be entitled to mandamus relief, a relator must show (1) that he has no other adequate legal remedy; and (2) the act sought to be compelled is purely ministerial. In re Yeager, 601 S.W.3d 356, 358 (Tex. Crim. App. 2020) (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 Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). A relator must establish that the trial 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.
The record shows that relator filed his motion for nunc pro tunc judgment in the trial court. However, relator has not shown that his motion was presented to the trial court for a ruling. Merely filing a motion with a court clerk does not show that the motion was brought to the trial court's attention for a ruling because the clerk's knowledge is not imputed to the trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding). Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.
Relator has filed an appeal from the trial court's failure to rule on his motion for nunc pro tunc judgment, which is pending in this court in case number 14-21-00346-CR. The clerk's record in the appeal contains relator's motion for nunc pro tunc judgment. An appellate court may take judicial notice of its own records in the same or related proceedings involving the same or nearly the same parties. Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987). Because this mandamus proceeding and the appeal pending in cause number 14-21-00346-CR involve the same motion filed in the trial court by relator, we can take judicial notice of the clerk's record in the appeal. See In re Carrington, No. 07-14-00030-CV, 2014 WL 793990, at *3 (Tex. App.- Amarillo Feb. 25, 2014, orig. proceeding) (mem. op.).
MEMORANDUM DISSENTING OPINION
Here we go again with imposing "extra rules" on people who are incarcerated. Once again this court denies mandamus relief to an incarcerated person based on the erroneous notion that in criminal cases, motions-other than motions for new trial- must in effect be presented to the trial court, not merely filed. See In re Gomez, 602 S.W.3d 71, 74-75 (Tex. App.-Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring); In re Pete, 589 S. W3d 320, 323-324 (Tex App-Houston [14th Dist] 2019) (orig proceeding) (Spain, J, concurring).
Here, relator includes two Domestic Return Receipt PS Form 3811 ("green cards") that are properly addressed to the Harris County District Clerk (both the street address and post office box) and were returned with signatures. What else is relator supposed to do? He is a prisoner at the Texas Department of Criminal Justice's W. J. "Jim" Estelle Unit.
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We could give relator notice that his original proceeding does not comply with Texas Rules of Appellate Procedure 52.3(j) (certification); (k)(1) necessary contents of appendix; 52.7(a)(1) (certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding), (a)(2) (properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or statement that no testimony was adduced in connection with the matter complained). We could notify relator there is no record supporting his claim that the jury made an affirmative finding on use of a deadly weapon, giving relator a reasonable time to cure and informing him that we will dismiss this original proceeding if he does not. See In re Kholaif, 624 S.W.3d 228, 231-32 (order), mand. dism'd, 615 S.W.3d 369 (Tex. App.-Houston [14th Dist.] 2020) (orig. proceeding).
But instead of giving relator notice and an opportunity to cure, the court uses the "extra rules" to make this original proceeding go away. This is wrong, and I dissent.