In Re Phillip "Baby Shark" Scott v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 9, 2023
• Docket: 03-23-00460-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00460-CV

In re Phillip “Baby Shark” Scott

ORIGINAL PROCEEDING FROM COMAL COUNTY

MEMORANDUM OPINION

Relator Phillip “Baby Shark” Scott, an inmate in the Comal County Jail, has

filed a pro se petition for writ of mandamus and writ of prohibition identifying as respondents

the Comal County District Attorney, the 22nd Judicial District Court, and an “Unknown Grand

Jury Foreperson,” and complaining of the district court’s alleged refusal to rule on pro se

motions in cause number CR2023-382, including a “Motion to Set-Aside [sic] Indictment”

represented to have been served on the district court on July 28, 2023. Scott asks us, inter

alia, to “command [the] clerk to fulfill duties.” Having reviewed the petition and the record

provided, we deny the petition for writ of mandamus. See Tex. R. App. P. 52.8(a).

To the extent Scott seeks mandamus relief against the Comal County district

clerk or district attorney, or against a grand juror, we have no jurisdiction to grant Scott relief.

This Court’s mandamus jurisdiction is expressly limited to: (1) writs against a district court

judge or county court judge in this Court’s district, and (2) all writs necessary to enforce our

jurisdiction. See Tex. Gov’t Code § 22.221. Thus, we have no jurisdiction to issue a writ of mandamus against the district clerk or the district attorney, or against a grand juror, unless

necessary to enforce our jurisdiction. See id. Scott has not demonstrated that the exercise of

our writ power against those persons is necessary to enforce our jurisdiction.

To the extent Scott seeks relief against the district court arising from the

court’s alleged refusal to respond to Scott’s submissions, this Court has jurisdiction to hear

that matter, but it is the relator’s burden to properly request and establish entitlement to

mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Roberts,

No. 03-12-00513-CV, 2012 Tex. App. LEXIS 7134, at *2 (Tex. App—Austin Aug. 21, 2012,

orig. proceeding) (mem. op.); see 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.”). “In this regard,

the relator must provide the reviewing court with a record sufficient to establish his right to

mandamus relief.” Roberts, 2012 Tex. App. LEXIS 7134, *3 (citing Walker, 827 S.W.2d at

837; In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding));

see also Tex. R. App. P. 52.3(k) (specifying required contents for appendix), 52.7(a)

(requiring relator to file with petition “a certified or sworn copy of every document that is

material to the relator’s claim for relief and that was filed in any underlying proceeding”).

Scott, however, has not provided this Court with any certified or file-stamped copies of his

submissions to show that a properly filed motion is pending before the trial court.

Further, to obtain mandamus relief based on a trial court’s refusal to rule

on a motion, a relator must establish: (1) the motion was properly filed and has been

pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial

court refused to rule. Roberts, 2012 Tex. App. LEXIS 7134, *2 (citing In re Sarkissian,

2 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681,

685 (Tex. App.—San Antonio 2004, orig. proceeding)). “A relator must show that the trial

court received, was aware of, and was asked to rule on the motion.” Id. (citing Blakeney,

254 S.W.3d at 661). In this proceeding, even if we assume that the motion attached to

Scott’s petition were filed with the district clerk as alleged, Scott has not demonstrated that

the motions were brought to the trial court’s attention or that the trial court is aware of the

motions. “Merely filing the matter with the district clerk is not sufficient to impute

knowledge of the pending pleading to the trial court.” Hearn, 137 S.W.3d at 685.

Finally, Scott appears to assert that he filed his set-aside motion on July 28,

2023, not even two weeks ago. Even assuming that the district court was made aware of the

motion at that time, so brief an interval does not ordinarily constitute an unreasonable length

of time for a motion to remain pending. See, e.g., In re Whitfield, No. 03-18-00564-CV,

2018 WL 4140735, at *1 (Tex. App.—Austin Aug. 29, 2018, no pet.) (citing In re Blakeney,

254 S.W.3d 659, 662–63 (Tex. App.—Texarkana 2008, orig. proceeding)).

Based on the record that Scott has provided, we conclude that he has failed to

show his entitlement to mandamus relief. Accordingly, we deny his petition for writ of

mandamus. See Tex. R. App. P. 52.8(a).

__________________________________________ Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Kelly and Theofanis

Filed: August 9, 2023