in Re: Billey Ray Risley

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 5, 2006

Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 5, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01005-CV

IN RE BILLY RAY RISLEY,

 Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M  O P I N I O N

On November 9, 2006, relator Billy Ray Risley, an inmate in the Texas Department of Criminal Justice, filed a mandamus petition in this court seeking an order compelling the Honorable Mary Lou Keel, presiding judge of the 232nd District Court of Harris County, to rule on his habeas corpus application and related motions, and to forward the application to the Texas Court of Criminal Appeals.^[1]  For the reasons stated below, we deny relator=s petition for writ of mandamus.  

Relator was convicted of aggravated assault in 2004 and sentenced to thirty years in prison.  His conviction was affirmed by the First Court of Appeals on June 9, 2005,^[2] and petition for discretionary review was refused.  On June 16, 2006, relator filed his application for habeas corpus, complaining of ineffective assistance of counsel at trial and on appeal.  The State responded to the application, and the trial court signed an order designating issues to be resolved on August 8, 2006.  Shortly thereafter, relator mailed to a Harris County clerk a motion to appoint counsel, a request to be present, and a request for the court reporter to prepare and file the record for his supplemental brief regarding the trial court=s designation of issues.  In his mandamus petition, relator argues that the trial court has failed to rule on these documents in a timely manner, violating its ministerial duty under the Texas Code of Criminal Procedure.   

 In a criminal case, mandamus relief is authorized only if the relator establishes that (1) under the facts and the law, the act sought to be compelled is purely ministerial; and (2) he has no other adequate legal remedy.  State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003).  When a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial, not discretionary.  Ex parte Bates, 65 S.W.3d 133, 134B35 (Tex. App.CAmarillo 2001, orig. proceeding).   

This court is empowered to mandamus a district court to consider and rule on properly filed pending motions if (1) relator has asked the trial court to rule, and (2) the trial court either refused to rule or failed to rule within a reasonable time.  See Barnes v. State, 832 S.W.2d 424, 426, 427 (Tex. App.CHouston [1st Dist.] 1992, orig. proceeding); Von Kolb v. Koehler, 609 S.W.2d 654, 655B56 (Tex. Civ. App.CEl Paso 1980, no writ).  There is no bright‑line rule establishing a Areasonable time@ period.  Ex parte Bates, 65 S.W.3d at 135.  Some of the factors involved in the determination include the trial court=s actual knowledge of the motion, its overt refusal to act on it, and the state of the court=s docket.  See id. (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)).  A relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); see Tex. R. App. P. 52.3, 52.7.   

In this case, although relator attached a copy of his habeas corpus application and the court=s order designating issues, the copies of his subsequent motions and letters to the clerk are not certified and do not reflect a file stamp; therefore, the copies do not evidence that relator made the court aware of his subsequent motions nor that he asked the court to rule and it refused.  Also, the court=s order designating issues to be resolved was signed on August 8, 2006, and relator does not provide any authority that a delay of this length in handling the matter is an unreasonable time period as a matter of law.  Relator claims that the trial court has a maximum period of sixty days and ninety days to resolve the issues under article 11.07, section 3(d); however, once the order designating the issues is rendered, the section does not state a maximum time period in which the trial court must resolve the matter.  See Tex. Code Crim. Proc. Ann. art. 11.07, ' 3(d) (Vernon 2005).^[3] 

In sum, relator has failed to establish that he is entitled to the mandamus relief requested.  Accordingly, we deny relator=s petition for writ of mandamus without prejudice to refiling at a later date. 

PER CURIAM

Petition Denied and Memorandum Opinion filed December 5, 2006.

Panel consists of Chief Justice Hedges, Justices Yates and Seymore.

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^[1]Relator also filed a motion for leave to file the mandamus petition and a motion to proceed in handwritten form.  Having addressed relator=s petition, we deny both of these motions as moot. 

^[2]Risley v. State, No. 01-04-00732-CR, 2005 WL 1365134 (Tex. App.CHouston [1st Dist.] June 9, 2005, pet. ref=d) (mem. op.).

^[3]Article 11.07, section 3(d) provides as follows:

(d) If the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant=s confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating the issues of fact to be resolved.  To resolve those issues the court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection.  Also, the convicting court may appoint an attorney or a magistrate to hold a hearing and make findings of fact.  An attorney so appointed shall be compensated as provided in Article 26.05 of this code.  It shall be the duty of the reporter who is designated to transcribe a hearing held pursuant to this article to prepare a transcript within 15 days of its conclusion.  After the convicting court makes findings of fact or approves the findings of the person designated to make them, the clerk of the convicting court shall immediately transmit to the Court of Criminal Appeals, under one cover, the application, any answers filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.

Tex. Code Crim. Proc. Ann. art. 11.07 ' 3(d) (Vernon 2005).