in Re Phillip M. Guthrie

• Court: Court of Appeals of Texas
• Decided: November 12, 2019
• Docket: 13-19-00579-CR
• Status: Published

Opinion

NUMBER 13-19-00579-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

IN RE PHILLIP M. GUTHRIE ____________________________________________________________

On Petition for Writ of Mandamus. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Perkes Memorandum Opinion by Justice Longoria 1

Relator Phillip M. Guthrie, proceeding pro se, filed a petition for writ of mandamus

in the above cause on November 12, 2019. Through this original proceeding, relator

seeks to compel the trial court to rule on and grant relator’s motion for nunc pro tunc

judgment. In sum, relator contends that his judgment of conviction is incorrect because

it fails to correctly credit him with time served. We deny the petition for writ of mandamus.

1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”). To be entitled to mandamus relief, the relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a purely ministerial act not involving a discretionary or judicial decision. In re Harris,

491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); 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).

It is the relator’s burden to properly request and show entitlement to mandamus

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

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled

to the extraordinary relief he seeks.”). In addition to other requirements, the relator must

include a statement of facts supported by citations to “competent evidence included in the

appendix or record” and must also provide “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the appendix or record.”

See generally TEX. R. APP. P. 52.3. As the party seeking relief, the relator has the burden

of providing the Court with a sufficient mandamus record to establish his right to a writ of

mandamus. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.

proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.

52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the

required contents for the record).

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. In re

Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding)

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

proceeding); Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001, 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. In re Henry, 525 S.W.3d at 382; In re Layton, 257

S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d

885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).

In this case, the relator has failed to meet his burden to show that the trial court

had a legal duty to rule, was asked to rule, and failed or refused to rule within a reasonable

time. See In re Henry, 525 S.W.3d at 382; In re Layton, 257 S.W.3d at 795. Moreover,

while a trial court has a ministerial duty to rule upon a motion that is properly and timely

presented to it for a ruling, it generally has no ministerial duty to rule a certain way on that

motion. In re State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding); In re Mendoza, 467 S.W.3d

76, 78 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding). Accordingly, we deny

the petition for writ of mandamus. See In re Harris, 491 S.W.3d at 334; In re McCann,

422 S.W.3d at 704.

NORA L. LONGORIA Justice

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

Delivered and filed this the 12th day of November, 2019.