in Re Robert Whitfield

• Court: Court of Appeals of Texas
• Decided: July 7, 2010
• Docket: 10-10-00231-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00231-CR

IN RE ROBERT WHITFIELD

Original Proceeding

MEMORANDUM OPINION

In this original proceeding, Relator Robert Whitfield seeks mandamus relief 1

against the respondent trial judge on the allegation that she has failed to hold a hearing

under article 64.04 of the Code of Criminal Procedure, as requested by Whitfield’s

motion for such a hearing, which he purportedly mailed for filing on May 3, 2010.2

1 Whitfield’s “application” for writ of mandamus has several procedural deficiencies. It does not include the certification required by Rule of Appellate Procedure 52.3(j). See TEX. R. APP. P. 52.3(j). Copies of the supporting documents are not certified or sworn to, as required by Rules 52.3(k) and 52.7(a)(1). See id. 52.3(k), 52.7(a)(1). And it lacks proof of service on the Freestone County District Attorney, a Real-Party- in-Interest. See id. 52.2. A copy of all documents presented to the Court must be served on all parties to the proceeding and must contain proof of service. Id. 9.5. Because of our disposition and to expedite it, we will implement Rule 2 and suspend these rules in this proceeding only. Id. 2.

2 Article 64.04 provides: “After examining the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” TEX. CODE CRIM. PROC. ANN. art. 64.04 (Vernon 2006); see In re Jackson, 238 S.W.3d 605 (Tex. App.—Waco 2007, orig. proceeding). A trial judge has a reasonable time to perform the ministerial duty of considering

and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225,

228 (Tex. App.—Amarillo 2001, orig. proceeding). But that duty generally does not

arise until the movant has brought the motion to the trial judge’s attention, and

mandamus will not lie unless the movant makes such a showing and the trial judge

then fails or refuses to rule within a reasonable time. See id.

Whitfield’s application and “record” do not show that he has brought his motion

to the trial judge’s attention or that he has otherwise requested the trial judge to hold

the article 64.04 hearing. Whitfield’s “record” has one letter (dated June 2, 2010) to the

District Clerk, and it asks only if any “ruling, order or any decision” had been made on

his motion. The mere filing of a pleading or letter with the clerk does not impute

knowledge to the trial court. See In re Flores, No. 04-03-00449-CV, 2003 WL 21480964

(Tex. App.—San Antonio June 25, 2003, orig. proceeding). Whitfield has not shown that

he has brought the matter to the attention of the trial judge.

Because Whitfield has not shown that he is entitled to relief, we deny the petition

for writ of mandamus.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed July 7, 2010 [OT06]

In re Whitfield Page 2