in Re Todd O'Keith Smith

• Court: Court of Appeals of Texas
• Decided: January 24, 2020
• Docket: 06-20-00008-CR
• Status: Published

Opinion

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

No. 06-20-00008-CR

IN RE TODD O’KEITH SMITH

Original Mandamus Proceeding

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

Todd O’Keith Smith has filed a petition for writ of mandamus seeking to compel the trial

judge of the 276th Judicial District Court of Marion County, Texas, to rule on his motion for

judgment nunc pro tunc, which seeks removal of a deadly-weapon finding contained in the

judgment convicting Smith of aggravated assault with a deadly weapon. We deny Smith’s petition

for writ of mandamus because he failed to provide us with a record to support his entitlement to

mandamus relief.

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 Judicial Dist. Court 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.”).

2 Smith has filed an insufficient record with this Court since it does not contain the judgment

against him or any evidence showing that his motions and requests were presented to the trial

court. Thus, Smith has failed to provide this Court with a record sufficient to establish that he is

entitled to mandamus relief. See Walker, 827 S.W.2d at 837.

We deny Smith’s petition for writ of mandamus.

Josh R. Morriss, III Chief Justice

Date Submitted: January 23, 2020 Date Decided: January 24, 2020

Do Not Publish