Opinion
NUMBER 13-16-00073-CR
02-02-2016
IN RE ERWIN BURLEY
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum OpinionPer Curiam
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Erwin Burley, proceeding pro se, filed a document entitled "Declaration for Entry of Default," "in the above cause on January 28, 2016. Relator appears to be seeking default judgments on a petition for writ of habeas corpus and a motion to recuse the trial court on grounds that the trial court has not timely ruled on those matters. Because relator's pleading does not reference an order or judgment subject to appeal, we construe this document as a petition for writ of mandamus. See generally TEX. R. APP. P. 25.1(a), (d).
Relator has previously appeared before this Court in other appellate causes. See In re Burley, No. 13-15-00253-CR, 2015 WL 3533762, at *1 (Tex. App.—Corpus Christi June 4, 2015, orig. proceeding) (per curiam mem. op., not designated for publication); Burley v. State, No. 13-11-00582-CR, 2012 WL 3792114, at *1 (Tex. App.—Corpus Christi Aug. 31, 2012, pet. ref'd) (mem. op., not designated for publication) (affirming relator's conviction for the third-degree felony offense of possession of cocaine in a drug-free zone). Relator has further pursued mandamus relief in the Texas Court of Criminal Appeals on grounds that the trial court had properly failed to act on his application for writ of habeas corpus. See In re Burley, No. WR-63,010-03, 2015 WL 4644761, at *1 (Tex. Crim. App. Aug. 5, 2015) (order, not designated for publication). The court of criminal appeals denied mandamus relief in that case after requesting and receiving a response to the petition from the District Clerk of Nueces County. --------
To be entitled to mandamus relief, 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 ministerial act not 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). If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. See id.
It is the relator's burden to properly request and show entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see 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. The relator must also file an appendix and record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record); see also Walker, 827 S.W.2d at 837.
Consideration of a request or motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding); see White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982). Thus, in proper cases, mandamus may issue to compel the trial court to act. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
To obtain mandamus relief for the trial court's refusal to rule on a motion, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding). The relator must show that the trial court received, was aware of, and was asked to rule on the motion. In re Blakeney, 254 S.W.3d at 661; In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). In this regard, the mere filing of a motion does not equate to a request that the trial court rule on the motion. See In re Sarkissian, 243 S.W.3d at 861; In re Hearn, 137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. In re Shredder Co., 225 S.W.3d at 680 ("Relator has made repeated requests for a ruling on its motion.").
In this case, relator's petition for writ of mandamus was not filed in compliance with the Texas Rules of Appellate Procedure insofar as it, inter alia, fails to contain sections for the identity of parties, the table of contents, an index of authorities, a statement of facts, a statement of jurisdiction, the issues presented, argument and authorities, and prayer. See generally TEX. R. APP. P. 52. Relator did not file an appendix or record with his "Declaration for Entry of Default," but did include copies of his "Motion for Judgment by Default" and "Motion to Disqualify Judge from Habeas Proceedings." Neither document is file-stamped.
Relator has failed to meet his burden to obtain mandamus relief. Here, there is nothing in the limited record before this Court to establish that relator's pleadings were properly filed with the trial court or that relator has ever requested a ruling on his pleadings or otherwise called them to the respondent's attention. See Barnes, 832 S.W.2d at 426 (denying mandamus petition where relator did not ask for a hearing on his motions or take any action to alert trial court that it had not yet considered his motions). Accordingly, relator has not furnished an appendix or record sufficient to support his claim for relief insofar as he has not demonstrated that his pleadings were presented to the respondent and the respondent has refused to act. See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding); In re Chavez, 62 S.W.3d at 228.
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relator has not met his burden to obtain mandamus relief. State ex rel. Young, 236 S.W.3d at 210. Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM Delivered and filed the 2nd day of February, 2016.