IN RE: RONNIE HENDRICK

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Court of Appeals of Texas, Corpus Christi-Edinburg.

IN RE: RONNIE HENDRICK

NUMBER 13-18-00207-CR

Decided: April 01, 2018

Before Chief Justice Valdez and Justices Benavides and Longoria 1

MEMORANDUM OPINION

Relator Ronnie Hendrick, proceeding pro se, filed a petition for writ of mandamus in this cause on April 12, 2018. In this original proceeding relator seeks to compel the trial court to rule on his request for the appointment of counsel and his article 64 request for post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01, 64.03 (West, Westlaw through 2017 1st C.S.). We deny the petition for writ of mandamus.

To be entitled to mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a purely ministerial act not involving a discretionary or judicial decision. In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).

It is the relator's burden to properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”). In addition to other requirements, the relator must include a statement of facts supported by citations to “competent evidence included in the appendix or record” and must also provide “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3. As the party seeking relief, the relator has the burden of providing the Court with a sufficient mandamus record to establish his right to mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record).

A trial court has a ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young, 236 S.W.3d at 210. A trial court has a reasonable time within which to consider a motion and to rule on it. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding). Accordingly, to be entitled to mandamus relief compelling a trial court to rule on a motion, a relator must establish that the trial court (1) had a legal duty to rule on the motion because the motion was properly filed and timely presented, (2) was asked to rule on the motion, and (3) failed or refused to rule on the motion within a reasonable period. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).

Here, the mandamus record does not include proof that relator properly filed the motions for the appointment of counsel and DNA testing, requested a hearing or ruling on the motions, or that the trial court has failed to act on relator's requests within a reasonable time. TEX. R. APP. P. 52.3(k); id. R. 52.7(a). The record before the Court is insufficient to establish that the motions were properly filed and timely presented, that the trial court was asked to rule, and that the trial court failed or refused to do so within a reasonable time. In re Molina, 94 S.W.3d at 886. Therefore, relator has not established that what he seeks to compel is a purely ministerial act not involving a discretionary or judicial decision. See In re Harris, 491 S.W.3d at 334.

The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, concludes that the relator has not met his burden to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly, we DENY relator's petition for writ of mandamus. See TEX. R. APP. P. 52.8(a). Having denied the petition for writ of mandamus, we dismiss as moot relator's motion for the suspension of the appellate rules regarding the provision of copies. See TEX. R. APP. P. 2 (allowing the suspension of an appellate rule “in a particular case”); id. R. 9.3(a) (governing the number of documents to be filed “in paper form” in the courts of appeals).

NORA L. LONGORIA Justice