in Re Roger Soliz ( 2018 )


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  •                                 Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-18-00565-CR
    IN RE Roger SOLIZ
    Original Mandamus Proceeding 1
    PER CURIAM
    Sitting:          Marialyn Barnard, Justice
    Patricia O. Alvarez, Justice
    Irene Rios, Justice
    Delivered and Filed: August 22, 2018
    PETITION FOR WRIT OF MANDAMUS DENIED
    Relator filed a petition for writ of mandamus complaining the trial court has refused to rule
    on his motion for DNA testing and for appointment of counsel.
    To establish a right to mandamus relief in a criminal case, the relator must show the trial
    court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks,
    
    391 S.W.3d 117
    , 122 (Tex. Crim. App. 2013) (orig. proceeding). A trial court has a ministerial
    duty to rule on a properly-filed and timely-presented motion. See In re State ex rel. Young v. Sixth
    Judicial Dist. Court of Appeals, 
    236 S.W.3d 207
    , 210 (Tex. Crim. App. 2007) (orig. proceeding).
    However, a relator has the burden of providing this court with a record sufficient to
    establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a)(1) (requiring relator to file “a
    1
    This proceeding arises out of Cause No. 2009-CR-0755B, styled The State of Texas v. Roger Soliz, pending in the
    175th Judicial District Court, Bexar County, Texas, the Honorable Catherine Torres-Stahl presiding.
    04-18-00565-CR
    certified or sworn copy of every document that is material to the relator’s claim for relief and that
    was filed in any underlying proceeding”). In a case such as this one, a relator has the burden to
    provide the court of appeals with a record showing the trial court was made aware of the motion
    at issue and that such motion has not been ruled on by the trial court for an unreasonable period of
    time. See In re Gallardo, 
    269 S.W.3d 643
    , 645 (Tex. App.—San Antonio 2008, orig. proceeding).
    Attached to relator’s petition is a copy of (1) his motion for DNA testing, (2) a motion to
    appoint counsel, and (3) a cover letter addressed to the Bexar County Clerk asking the clerk to file
    his motions and send him a file-stamped copy by return mail. None of the documents are file-
    stamped by the clerk. However, the record also contains a copy of an inmate form in which relator
    asks for confirmation that his motions were mailed. This document contains a hand-written
    notation stating, “Yes, it went out on 7-5-18.” Even if this inmate form indicates relator’s motions
    were mailed and filed with the Bexar County Clerk, relator did not provide this court with a record
    indicating the trial court was made aware of the motion. Showing a motion was filed with the
    court clerk does not constitute proof the motion was brought to the trial court’s attention or
    presented to the trial court with a request for a ruling. In re Davidson, 
    153 S.W.3d 490
    , 491 (Tex.
    App.—Amarillo 2004, orig. proceeding).
    Finally, the temporal requirement on a trial court to rule on a pending motion is only that
    the judge rule within a “reasonable time.” In re Chavez, 
    62 S.W.3d 225
    , 228 (Tex. App.—
    Amarillo 2001, orig. proceeding); In re Ramirez, 
    994 S.W.2d 682
    , 683 (Tex. App.—San Antonio
    1998, orig. proceeding). Whether such a period has lapsed is dependent upon the circumstances
    of each case. 
    Chavez, 62 S.W.3d at 228
    . Moreover, “no bright-line demarcates the boundaries of
    a reasonable time period.” 
    Id. Its scope
    is dependent upon a myriad of criteria, including the trial
    court’s actual knowledge of the motion, its overt refusal to rule, the state of the court’s docket, and
    the existence of other judicial and administrative matters that must be addressed first. 
    Id. at 228-
                                                     -2-
    04-18-00565-CR
    29. This court has held that one month is a reasonable time to pass before a court rules. See In re
    Holleman, No. 04-04-00183-CV, 
    2004 WL 624584
    , at *1 (Tex. App.—San Antonio Mar. 31,
    2004, orig. proceeding) (mem. op.) (per curiam); but see 
    Ramirez, 994 S.W.2d at 684
    (deciding
    18-month delay was unreasonable). In this case, less than two months have elapsed since relator
    allegedly filed his motions and the record does not contain a copy of the trial court’s docket or
    other proof that establishes the trial court has failed to rule on his motions within a reasonable
    time.
    Based on the record before us, we conclude relator has not shown himself entitled to
    mandamus relief. Accordingly, the petition for writ of mandamus is denied.
    PER CURIAM
    Do not publish
    -3-