In Re Robert Pennock v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 18, 2024
• Docket: 14-24-00450-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 18, 2024

In The

Fourteenth Court of Appeals

NO. 14-24-00450-CR

IN RE ROBERT PENNOCK, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 263rd District Court Harris County, Texas Trial Court Cause No. 1732395

MEMORANDUM OPINION

On Thursday, June 20, 2024, relator Robert Pennock filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Melissa Morris, presiding judge of the 263rd District Court of Harris County, to order the court clerk to comply with Texas Rule of Appellate Procedure 31.1. See Tex. R. App. P. 31.1. To be entitled to mandamus relief, the relator must show that (1) he has no adequate remedy at law to redress his alleged harm, and (2) what he seeks to compel is a ministerial act, not a discretionary act. In re Johnson, No. 14-23- 00634-CR, 2023 WL 5809968, at *1 (Tex. App.—Houston [14th Dist.] Sept. 7, 2023, orig. proceeding.); see In re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). 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. Johnson, 2023 WL 5809968, at *1. For relator to be entitled to mandamus relief, the record must show (1) the motion was filed and brought to the attention of the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the motion within a reasonable time after the motion was submitted to the court for a ruling or after the party requested a ruling. Id. As the party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. Id; see Tex. R. App. P. 52.7(a)(1) (relator must file with the mandamus 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”). To establish that the motion was filed, the relator must provide either a file-stamped copy of the motion or other proof that the motion in fact was filed and is pending before the trial court. Id. Merely filing a motion with a court clerk does not show that the motion was

2 brought to the trial court's attention for a ruling because the clerk's knowledge is not imputed to the trial court. Id. Relator has not provided this court with any documents filed in the underlying proceeding. See id. There is no mandamus record to demonstrate that a motion requesting the trial court order the court clerk to comply with Texas Rule of Appellate Procedure 31.1 is pending in the trial court. See id. Similarly, there is no record that relator has brought a pending motion to the attention of the respondent-judge for a ruling. See id. Mere filing is insufficient because the clerk's knowledge is not imputed to the trial judge. Id. The respondent-judge is not required to consider a motion that has not been called to the trial court's attention by proper means. Id. Even if relator showed that his motion is properly pending in the trial court and the trial court was made aware of it, relator has not shown that it has been pending for an unreasonable period of time. See id. Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Wise, Bourliot, and Wilson. Do Not Publish — Tex. R. App. P. 47.2(b).