in Re Richard Lee Glenn ( 2006 )

NO. 07-06-0446-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 20, 2006

______________________________ IN RE RICHARD LEE GLENN, RELATOR _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON PETITION FOR WRIT OF MANDAMUS

Relator Richard Lee Glenn, proceeding pro se, seeks a writ of mandamus directing the Honorable John Board, Judge of the 181st District Court of Potter County, to hold a hearing and rule on his application for writ of mandamus seeking to compel Caroline Woodburn, Potter County District Clerk, to issue citation in a civil case. We will deny relator's petition.

Relator alleges he filed a civil action in the 181st District Court on December 12, 2005, and that he sought issuance of citation through the district clerk's office. Relator alleges that he has made requests of the district clerk's office by letter on April 17^th, June 7^th, and August 9^th of 2006. He further alleges that he has received no response from the district clerk's office and that no citations have been issued from said office. No certified or sworn copies of the application were included with the petition for writ of mandamus as required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. Relator maintains the trial court abused its discretion by refusing to hear and rule on his motions. He also asserts he has no adequate remedy by law.

"Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). To show entitlement to mandamus relief in circumstances such as those presented by relator's petition, he must satisfy three elements: first, a legal duty to perform a non-discretionary act; second, a demand for performance; and third, refusal of that demand. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). When a motion is properly pending before a trial court, the act of considering and ruling on the motion is a ministerial act. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). However, the trial court has a reasonable time within which to perform that ministerial duty. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997) (orig. proceeding). Whether a reasonable period of time has lapsed is dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992) (orig. proceeding).

Additionally, the party seeking relief has the burden to provide a sufficient record to establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. See also Ex parte Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001) (orig. proceeding). The record must show the motion was presented to the trial court and it refused to act. In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex.App.-Amarillo 2003) (orig. proceeding). Relator asserts that on September 13, 2006, he mailed his application to the trial court judge seeking the court to compel the district clerk to issue citations. However, he does not sufficiently demonstrate that his application was received by the trial judge, filed with the district clerk's office, and that the district court has refused to act on it. We must conclude relator has not satisfied his burden to provide a sufficient record demonstrating that a properly pending motion has awaited disposition for an unreasonable length of time or that the trial court has refused to perform a ministerial act.

Moreover, as noted, relator's petition for writ of mandamus does not substantially comply with the requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants must comply with the same applicable procedural rules as counsel-represented litigants). For these reasons, relator's petition for writ of mandamus is denied.

Mackey K. Hancock

Justice

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NO. 07-10-0193-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 14, 2011

______________________________

MALCOLM DEAN SCOTT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242^ND DISTRICT COURT OF HALE COUNTY;

NO. B18075-0906; HONORABLE EDWARD LEE SELF, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

CONCURRING OPINION

            I agree with the majority in its conclusion that the trial court did not err in refusing to admit evidence of Appellant's previous acquittal in the trial of an extraneous offense, however, I write separately to address the issue from the perspective of the admissibility of that acquittal.[1]

            As the majority notes, Appellant relies exclusively on Kerbyson v. State, 711 S.W.2d 289 (Tex.App.--Dallas 1986, pet. ref'd), to support his position that a trial court errs in excluding evidence of an acquittal on an extraneous offense when the State offers evidence of that offense.  But there is a problem with Appellant's contention -- that's not what Kerbyson held.  In Kerbyson, over the appellant's objection, the trial court admitted evidence of an extraneous offense for which the appellant had been acquitted.  Id. at 290.  The court then refused to admit evidence of that acquittal.  Id.  By two separate issues, the appellant contended the trial court erred in admitting evidence of the extraneous offense and in excluding evidence showing his acquittal on that offense.  Id.  Without clearly specifying its ground for reversal, the Dallas Court of Appeals concluded the trial court erred in admitting evidence of the extraneous offense and then concluded that the prejudicial effect of that error was exacerbated by excluding evidence of the acquittal.  Id.  To the extent that Kerbyson can be read as saying the exclusion of evidence of an acquittal is reversible, I would respectfully disagree.  Furthermore, because this case is factually distinguishable (here Appellant did not object to the admission of the extraneous offense), Kerbyson is inapposite.

            Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Tex. R. Evid. 401.  An acquittal is nothing more than one jury's collective opinion as to whether or not the prosecution proved that particular offense to their satisfaction beyond a reasonable doubt.  Whether the prosecution did or did not meet its burden in a previous trial does not make the existence of any fact that is of consequence in this case more or less probable.  Because evidence of Appellant's acquittal was inadmissible under Rule 402 of the Texas Rules of Evidence, the trial court did not err in excluding that evidence.           .

                                                                                      Patrick A. Pirtle                                                                                                                                        Justice

Do not publish.

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[1]In an apparent attempt to justify its dubious decision to offer evidence of a previously acquitted extraneous offense in the first place, the State misdirects the issue presented by arguing that the evidence it offered was "same transaction contextual evidence" rather than an extraneous offense.  Because Appellant did not object to the admission of the evidence offered by the State, a decision counsel may very well have made for strategic purposes, the issue was never about the admissibility of that evidence.  What is really at issue here is the admissibility of the acquittal.