IN RE: Marvin Holmes

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Court of Appeals of Texas, Beaumont.

IN RE: Marvin Holmes

NO. 09–15–00375–CR

Decided: September 30, 2015

Before Kreger, Horton, and Johnson, JJ.


Relator Marvin Holmes filed a pro se petition for writ of mandamus, in which he complains that the trial court did not respond to his request for “nunc pro tunc relief.”   Holmes did not include a file-stamped copy of the motion to which the trial court allegedly failed to respond, nor does he describe his efforts to secure a ruling on his motion.  “ ‘A [trial] court is not required to consider a motion that is not called to its attention.’ ”  Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.— Houston [1st Dist.] 1994, writ denied) (quoting Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex.App.—Waco 1987, writ denied)).  “Showing 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.”  In re Davidson, 153 S.W.3d 490, 491 (Tex.App.— Amarillo 2004, orig. proceeding).

Holmes has failed to demonstrate that his motion was properly filed and that he brought his motion to the trial court's attention.   Holmes has not demonstrated that he is clearly entitled to mandamus relief from this Court.   See State ex rel Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001) (To demonstrate entitlement to a writ of mandamus, a relator must establish that the trial court failed to perform a ministerial duty, and that relator has no other adequate legal remedy.).   Accordingly, we deny relief on the petition for writ of mandamus.



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