C. D. Henderson Construction Services, Ltd. v. Dumas Hardware Company--Appeal from 201st District Court of Travis County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 03-10-00483-CV

Case Date: 12/31/2010

Plaintiff: WILTON LARRON MAHAFFEY

Defendant: THE STATE OF TEXAS (Original)

Preview:In re Milliard Perkins--Appeal from 290th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04- 06-00870-CV IN RE Milliard PERKINS Original Mandamus Proceeding (1)

PER CURIAM Sitting: Catherine Stone, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and filed: December 27, 2006 PETITION FOR WRIT OF MANDAMUS DENI ED On December 14, 2006, relator filed a petition for writ of mandamus, complaining that the respondent has not ruled on various pro se motions he contends he has filed in his pending criminal prosecution, including a (1) Petition for a Person Afflicted With a Disease, (2) Motion for Quantitative Analysis, (3) Petition for Improbable [sic] Cause, (4) Motion to Dismiss - Insufficient Evidence, and (5) Motion to Dismiss Attorney for Ineffective Assistance. Counsel has been appointed to represent relator in the criminal proceeding pending in the trial court. We conclude that appointed counsel for relator is also his counsel for an original proceeding on the issues presented. To obtain mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial rather than discretionary in nature and (2) there is no adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). As to the first four motions on which respondent has allegedly not taken any action, respondent has no duty to rule on relator's pro se motions because relator is represented by appointed counsel, and relator is not entitled to hybrid representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). Consequently, the respondent did not violate a ministerial duty by declining to rule on relator's various motions. As to the fifth motion, to dismiss his attorney, none of the copies of the motions bear a date-stamp and relator does not indicate when he filed the motions. Nevertheless, relator states in his petition that he was arrested on October 5, 2006. Therefore, the motion to dismiss his attorney has been pending for less than two months, at most. A trial court has a reasonable time within which to perform its ministerial duty. Id. Accordingly, if a court unnecessarily delays ruling, mandamus will lie in appropriate situations. Here, we cannot say that a period of less than two months is an unreasonable delay. It is the relator's burden to provide this court with a record sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.3(j), 52.7(a). Because relator has not met his burden of providing a record establishing that a properly filed motion has awaited disposition for an unreasonable time, he has not provided the court with grounds to usurp the trial court's inherent authority to control its own docket. For these reasons, this court has determined that relator is not entitled to the relief sought. Therefore, the petition is DENIED. Tex. R. App. P. 52.8(a). Relator is encouraged to refrain from filing further pro se petitions regarding his pending criminal proceeding.

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PER CURIAM 1. This proceeding arises out of Cause No. 2006-CR-9593, styled The State of Texas v. Milliard Perkins, pending in 290th Judicial District Court, Bexar County, Texas, the Honorable Sharon MacRae presiding.

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