in Re Steven MacK McGee

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00137-CR

IN RE STEVEN MACK MCGEE

Original Mandamus Proceeding

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Relator Steven Mack McGee, an inmate proceeding pro se, has filed a petition for a writ

of mandamus asking this Court to direct the 71st Judicial District Court of Harrison County,

Texas, to issue a judgment nunc pro tunc. We deny McGee’s petition because he has failed to

demonstrate that he presented his motion to the trial court and requested a ruling.

To be entitled to mandamus relief, the relator must show (1) that he has no adequate

remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a

discretionary or judicial decision. 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). The relator must

also provide this Court with a record sufficient to establish his right to mandamus relief. Walker

v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim’s Pride Corp., 187

S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding); see TEX. R. APP. P. 52.3.

Before mandamus may issue, the relator must show that the trial court had a legal duty to

perform a ministerial act, was asked to do so, and failed or refused to act. In re Villarreal, 96

S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding); see also In re Blakeney, 254

S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) (“Showing that a motion was

filed with the court clerk does not constitute proof that the motion was brought to the trial court’s

attention or presented to the trial court with a request for a ruling.”). “Even a pro se applicant for

a writ of mandamus must show himself entitled to the extraordinary relief he seeks.” Barnes v.

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

(per curiam).

2 On July 17, 2001, pursuant to a plea agreement, McGee pled guilty to the offenses of

indecency with a child1 and sexual assault.2 Included in the appendix attached to McGee’s

petition for a writ of mandamus is a copy of the trial court’s judgment, which states under the

heading “TERMS OF PLEA BARGAIN” that the sentences for the two convictions shall run

consecutively. Also attached is a document titled Agreement Concerning Sentencing, which

states McGee’s sentences, “shall run concurrently, and not consecutively.” That document is

signed by McGee, his attorney, and the State. The basis of his motion for a judgment nunc pro

tunc is the disparity between the trial court’s judgment and the terms in the Agreement

Concerning Sentencing.

Among the documents attached to McGee’s petition is a letter to the district clerk, which

states that, along with that letter, McGee enclosed a motion for a judgment nunc pro tunc and a

notice of inability to pay costs. There is nothing, however, demonstrating that McGee took any

action to present his motion to the trial court or asked the court to rule on it. “A party’s right to

mandamus relief generally requires a predicate request for some action and a refusal of that

request.” In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding).

Because McGee has not shown that he presented his motion to the trial court, requested a

hearing, or requested that the court rule on the motion, he has not shown himself entitled to

mandamus relief.

1 See TEX. PENAL CODE ANN. § 21.11. 2 See TEX. PENAL CODE ANN. § 22.011 (Supp.). 3 The petition for a writ of mandamus is denied.

Josh R. Morriss, III Chief Justice

Date Submitted: October 26, 2022 Date Decided: October 27, 2022

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