in Re: David Harris

• Court: Court of Appeals of Texas
• Decided: November 22, 2019
• Docket: 08-19-00208-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§

§ IN RE: No. 08-19-00208-CR § DAVID HARRIS, AN ORIGINAL PROCEEDING § Relator. IN MANDAMUS §

OPINION

David Harris, pro se, has filed a mandamus action against Judge Angie Juarez Barill of the

346th District Court. Harris asserts that he filed a motion for judgment nunc pro tunc in Cause

No. 20020D05384 and that the 346th District Court has failed to rule on that motion within a

reasonable period of time. Because there is no evidence in the mandamus record showing that a

motion for judgment nunc pro tunc is, in fact, currently pending in the trial court or that there has

been an unreasonable delay in ruling on such a motion, we will deny mandamus relief.

BACKGROUND

In 2004, Harris was convicted of one count of aggravated sexual assault of a child in Cause

No. 20020D05384 in the 346th District Court. This Court affirmed his conviction on direct appeal.1 In his pro se mandamus petition, Harris alleges that the El Paso County Sheriff’s Office

placed a pretrial detainer on him on February 3, 2003, and that the detainer should have been lifted

or dissolved after the sentence in his case was imposed on May 19, 2004. However, Harris alleges

that he learned on or about January 1, 2018, that the 2003 detainer was still active, which allegedly

affected his ability to participate in certain prison programs. He states that on April 17, 2019, he

filed a motion for judgment nunc pro tunc in the 346th District Court in order to get the El Paso

County Sheriff’s Office detainer against him lifted. He further alleges that the trial court has not

ruled on this motion.

DISCUSSION

In his sole issue on mandamus review, Harris contends the trial court has violated its duty

to rule on a pending motion within a reasonable period of time. We find that Harris has not shown

he is entitled to mandamus relief on this ground.

A trial court has a ministerial duty to consider and rule on motions properly filed and

pending before it, and mandamus may issue to compel the trial court to act. See In re Henry, 525

S.W.3d 381, 382 (Tex.App.—Houston [14th Dist.] 2017, orig. proceeding). A relator must

establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the

motion; and (3) failed or refused to rule on the motion within a reasonable time. Id. A trial court

is not required to consider a motion that has not been called to its attention by proper means. Id.

Here, as in In re Henry, Harris has not met his burden of establishing entitlement to

mandamus relief. Harris filed an initial mandamus petition with this Court, but the application

1 In two appeals (one from the State and one from Harris), this Court affirmed the guilt-innocence portion of the conviction but reversed the jury’s twenty-six years’ sentence and remanded for imposition of a life sentence. See State v. Harris, No. 08-04-00139-CR, 2005 WL 1965319 (Tex.App.—El Paso Aug. 16, 2005, pet. ref’d)(State’s appeal of illegal sentence); Harris v. State, No. 08-04-00143-CR, 2005 WL 2095265 (Tex.App.—El Paso Aug. 31, 2005, pet. ref’d)(Harris’ appeal on factual insufficiency and evidentiary grounds).

2 was deficient. This Court filed the original application but sent a deficiency notice asking him to

file an amended petition that complied with the requirements of Rule 52. Harris later filed an

amended petition. However, the amended petition still does not contain a copy of “any other

document showing the matter complained of” as required by TEX.R.APP.P. 52.3(k)(1)(A) (for

example, a file-stamped copy of the motion, copies of his correspondence with the court, etc.).

Without supporting evidence in the mandamus appendix documenting the fact that he made

a request to the trial court and brought the issue to the trial court’s attention by proper means, the

Court cannot grant mandamus relief in Harris’ favor. See In re Henry, 525 S.W.3d at 382 (relator

did not establish entitlement to mandamus relief where documents attached to petition for writ of

mandamus were not file-stamped to show they had been submitted to the trial court; relator also

failed to show by other means that his motion was presented to the trial court or how long the

motion had been pending).

Additionally, even if Harris is correct and his motion has been pending since April, Harris

cannot establish that the trial court failed to act within a reasonable period of time under these

circumstances. No bright-line rule exists to assess reasonableness; what constitutes a reasonable

time to rule on a motion depends on the facts and circumstances of the particular case. In re Mesa

Petroleum Partners, L.P., 538 S.W.3d 153, 157 (Tex.App.—El Paso 2017, orig. proceeding).

Factors we take into account in assessing the reasonableness of time for a pending motion include

the seriousness and complexity of the pending motion, the court’s actual knowledge of the motion,

the state of the trial court’s docket, the existence of judicial and administrative matters which the

trial court must first address, and the court’s inherent power to control its own docket. Id. at 157-

58. Again, based on the record before us, we cannot determine whether Harris has filed a motion

3 and called that motion to the trial court’s attention.2 Furthermore, without knowing the specifics

of Harris’ alleged motion for a judgment nunc pro tunc, we cannot assess whether said motion was

simple or complex, nor can we properly counterbalance the motion’s complexity and the time it

would take to resolve the motion against the competing demands of the trial court’s docket at large.

As such, Harris has not met his burden in establishing that the trial court failed to act on his motion

within a reasonable period of time.

CONCLUSION

Because there is insufficient evidence in the mandamus record to support a grant of relief,

Harris’ request for mandamus relief is denied.

GINA M. PALAFOX, Justice November 22, 2019

Before Palafox, J., McClure, C.J. (Senior Judge), and Barajas, C.J. (Senior Judge) McClure, C.J. (Senior Judge), sitting by assignment Barajas, C.J. (Senior Judge), sitting by assignment

(Do Not Publish)

2 Although we are limited to reviewing the mandamus record before us, we note as an aside that the publicly available records for the 346th District Court do not specifically show that Harris filed a motion on or about April 2019, though the online docket sheet for this trial cause number does show the court received letters during the summer and fall. See https://casesearch.epcounty.com/PublicAccess/CaseDetail.aspx?CaseID=5383252.