in Re Edward Charles Holland

• Court: Court of Appeals of Texas
• Decided: August 24, 2022
• Docket: 09-22-00263-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00263-CR __________________

IN RE EDWARD CHARLES HOLLAND

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Original Proceeding Criminal District Court of Jefferson County, Texas Trial Cause Nos. 91161, 83949, 88140 __________________________________________________________________

MEMORANDUM OPINION

On May 4, 2022, we denied Edward Charles Holland’s petition for

mandamus, a petition in which he asked that this Court order the trial

court to vacate a cumulation order that relates to a judgment the trial

court signed in 2004. 1 Holland then filed a subsequent petition seeking

mandamus relief, claiming that he mailed a motion to vacate a void

1See In re Holland, No. 09-22-00129-CR, 2022 WL 1395319, at *2 (Tex. App.—Beaumont May 4, 2022, orig. proceeding) (mem. op., not designated for publication). 1 cumulation order to the trial court on June 8, 2022. We deny the

subsequent petition. 2

To obtain relief through a petition for mandamus in a criminal case,

the relator must show that he does not have an adequate remedy by

appeal and that he seeks to compel a ministerial act not involving a

discretionary or judicial decision. 3 To establish the trial court abused its

discretion in failing to rule on a motion, the relator must establish the

trial court: (1) had a legal duty to perform a ministerial act, (2) was asked

to perform the act, and (3) failed or refused to do so within a reasonable

time. 4 A relator must support his mandamus petition with a record

containing every document material to his claim for relief. 5

Whether a reasonable period lapsed depends on the circumstances

of the case, circumstances that include whether the trial court knew of

the motion, whether the trial court overtly refused to act, the state of the

court’s docket, and whether there were other judicial and administrative

2See Tex. R. App. P. 52.8(a). 3State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). 4In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.

proceeding). 5See Tex. R. App. P. 52.7.

2 matters that must be addressed first. 6 Holland argues that we should

deem the trial court denied the motion because the trial court failed to

rule on the motion within a reasonable time. He neither provides

documentation to support his claim that he properly filed the motion and

brought it to the attention of the trial court, nor does he support his

petition with authority that slightly more than two months is an

unreasonable period of time for the successor judge to consider and rule

on a request to issue a judgment nunc pro tunc.

Holland further argues that the cumulation order in the judgment

signed in Trial Cause Number 91161 in 2004 by the predecessor judge of

the Criminal District Court of Jefferson County is void because the trial

court when orally pronouncing his sentence failed to state when the

sentence is to begin or when it will cease to operate. Holland concedes he

failed to object to the cumulation order when the trial court orally

pronounced that his 30-year sentence would run consecutive to his

sentences in Cause Number 83949 for the felony offense of burglary of a

habitation out of the Criminal District Court dated February 2, 2002, and

6In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo 2003, orig. proceeding). 3 that it would also run consecutive to his conviction in Cause Number

88140 out of the Criminal District Court dated February 2, 2004. We

resolved this issue against Holland when we ruled on his previous

petition. 7

Holland also argues the successor judge has a ministerial duty to

vacate the cumulation order because the evidence at his trial failed to

link Holland to the previous convictions. But claims alleging improper

cumulation are forfeited unless they were preserved and then raised by

the defendant in a direct appeal. 8

Holland has not established he is entitled to relief on his petition.

The petition for a writ of mandamus is denied. 9

PETITION DENIED.

PER CURIAM

Submitted on August 23, 2022 Opinion Delivered August 24, 2022 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

7SeeIn re Holland, No. 09-22-00129-CR, 2022 WL 1395319, at *2 (Tex. App.—Beaumont May 4, 2022, orig. proceeding) (mem. op., not designated for publication). 8See Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). 9See Tex. R. App. P. 52.8(a).