in Re John F. Hawkins

• Court: Court of Appeals of Texas
• Decided: May 23, 2018
• Docket: 09-18-00180-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-18-00180-CR ____________________

IN RE JOHN F. HAWKINS _______________________________________________________ ______________

Original Proceeding 163rd District Court of Orange County, Texas Trial Cause No. B-30731-R ________________________________________________________ _____________

MEMORANDUM OPINION

John F. Hawkins filed a petition for mandamus relief through which he seeks

to compel the trial court to rule on a motion for new trial Hawkins filed after his

conviction was affirmed on appeal and after the trial court’s plenary power over the

case expired.1 To obtain mandamus relief in a criminal case, the relator must show

that he has a clear and indisputable right to the relief sought. State ex rel. Rosenthal

v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). Generally, the trial court has a

1 See generally Hawkins v. State, No. 10-04-00234-CR, 2006 WL 300976, at *2 (Tex. App.—Waco Feb. 8, 2006, pet. ref’d) (mem. op., not designated for publication). 1 duty to rule on a properly and timely filed motion within a reasonable time. See State

ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). But a trial court

“does not have a duty to rule on free-floating motions unrelated to currently pending

actions. In fact, it has no jurisdiction to rule on a motion when it has no plenary

jurisdiction coming from an associated case.” In re Cash, No. 06-04-00045-CV,

2004 WL 769473, at *1 (Tex. App.—Texarkana Apr. 13, 2004, orig. proceeding)

(mem. op.). “When a conviction has been affirmed on appeal and the mandate has

issued, general jurisdiction is not restored in the trial court.” State v. Patrick, 86

S.W.3d 592, 594 (Tex. Crim. App. 2002). Hawkins cites no authority for the trial

court to act when a motion for new trial is filed more than thirty days after the date

on which the trial court imposes sentence in open court. See Tex. R. App. P. 21.4(a).

Hawkins has neither shown that he has a clear and indisputable right to have

the trial court consider and rule upon his motion at this time, nor has Hawkins shown

that he is presently entitled to mandamus relief from this Court. Accordingly, we

deny the petition for writ of mandamus.

PETITION DENIED.

PER CURIAM

2 Submitted on May 22, 2018 Opinion Delivered May 23, 2018 Do Not Publish

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