In Re Mickey Wayne Boswell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 23, 2024
• Docket: 13-24-00103-CR
• Status: Published

Opinion

NUMBERS 13-24-00102-CR, 13-24-00103-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE MICKEY WAYNE BOSWELL

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Chief Justice Contreras1

Pro se relator Mickey Wayne Boswell filed a petition for writ of mandamus arising

from trial court cause number 09-CR-1006, docketed in our appellate cause number 13-

24-00102-CR, and trial court cause number 10-CR-4228, docketed in our appellate cause

number 13-24-00103-CR. Both cases arise from proceedings in the 319th District Court

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). of Nueces County, Texas. Relator contends that he filed motions for nunc pro tunc

judgment in each case seeking to correct clerical errors and seeks to compel the trial

court to rule on these pending motions.

In a criminal case, to be entitled to mandamus relief, the relator must establish

both that the act sought to be compelled is a ministerial act not involving a discretionary

or judicial decision and that there is no adequate remedy at law to redress the alleged

harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);

In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam);

In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the

relator fails to meet both requirements, then the petition for writ of mandamus should be

denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207,

210 (Tex. Crim. App. 2007) (orig. proceeding). It is the relator’s burden to properly request

and show entitlement to mandamus relief. See State ex rel. Young, 236 S.W.3d at 210;

see also Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992,

orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must

show himself entitled to the extraordinary relief he seeks.”); see generally TEX. R. APP. P.

52.3, 52.7(a).

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 comply with

this duty. In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig.

proceeding). For mandamus to issue, the record must show that: (1) the motion was filed

and brought to the attention of the judge for a ruling, and (2) the judge did not rule on the

2 motion within a reasonable time after the motion was submitted to the court for a ruling

or after the party requested a ruling. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—

Houston [14th Dist.] 2020, orig. proceeding). In this regard, merely filing a motion with a

court clerk does not show that the motion was brought to the trial court’s attention for a

ruling because the clerk’s knowledge is not imputed to the trial court. In re Ramos, 598

S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). In other

words, “a court is not required to consider a motion not called to its attention.” In re Layton,

257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding).

The Court, having examined and fully considered the petition for writ of mandamus

in each case, is of the opinion that relator has not met his burden to obtain relief. See In

re Meza, 611 S.W.3d at 388. Based on the record provided, relator has not brought his

pending motions to the attention of the trial court judge. See In re Ramos, 598 S.W.3d at

473; In re Layton, 257 S.W.3d at 795. Accordingly, we deny the petition for writ of

mandamus in each of these cause numbers.

DORI CONTRERAS Chief Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 23rd day of January, 2024.