In Re Bryce Ian Richards v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 2, 2023
• Docket: 10-23-00218-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00218-CR

IN RE BRYCE IAN RICHARDS

Original Proceeding

From the 12th District Court Walker County, Texas Trial Court No. 29,446

MEMORANDUM OPINION

Bryce Ian Richards seeks a writ of mandamus ordering the District Clerk of Walker

County to file, and the trial court judge to rule on a motion Richards alleges he presented

for filing on or about July 11, 2023, in which he sought a nunc pro tunc judgment.

Richards alleges the trial court failed to properly award jail time credit at the time

sentence was imposed. Asserting that he is being illegally restrained, he requests this

Court compel the district court clerk "to file, process, and docket" the nunc pro tunc

motion and compel the district court judge to award credit for presentence time served. This Court has mandamus jurisdiction against a district court judge or county

court judge in our district, and all writs necessary to enforce our jurisdiction. See TEX.

GOV'T CODE ANN. § 22.221(a), (b). We have no authority to issue a writ of mandamus

against a district clerk unless such is necessary to enforce this Court's jurisdiction. In re

Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998, orig. proceeding). Richards

has not shown that issuance of a writ is necessary to enforce our appellate jurisdiction.

See id. To the extent Richards seeks mandamus relief against the district clerk, we dismiss

Richards's petition for writ of mandamus for lack of jurisdiction.

We now consider the petition as it pertains to Richards's request for a writ of

mandamus forcing the trial court to rule on his motion. To obtain mandamus relief in a

criminal case, the relator must establish that (1) the act sought to be compelled is

ministerial and (2) there is no adequate remedy at law. In re State ex rel. Best, 616 S.W.3d

594, 599 (Tex. Crim. App. 2021) (orig. proceeding). When a motion is properly filed and

pending before a trial court, the act of giving consideration to and ruling upon that

motion is a ministerial act, and mandamus may issue to compel the trial court to act. In

re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). A

trial court is required to consider and rule on a motion within a reasonable time. Id.

Richards has the burden of providing this Court with a sufficient record to

establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a) (requiring record to be

filed with petition and prescribing contents of record); see also In re Ramos, 598 S.W.3d

In re Richards Page 2 472, 473 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). Richards has not filed

a record in support of his petition. Consequently, Richards's petition does not

demonstrate that his motion was filed with the trial court, that the motion was called to

the trial court's attention or presented to the trial court for a ruling, or that the trial court

refused to rule on the motion. See In re Gomez, 602 S.W.3d at 73. Thus, Richards has not

shown that he is entitled to mandamus relief. Accordingly, to the extent Richards seeks

mandamus relief against the judge of the trial court, we deny the petition for writ of

mandamus.

Accordingly, the petition for writ of mandamus is dismissed in part and denied in

part.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Petition dismissed in part and denied in part Opinion issued and filed August 2, 2023 Do not publish [OT06]

In re Richards Page 3