in Re John Lawrence Monk ( 2010 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-10-00123-CR
    IN RE JOHN LAWRENCE MONK
    Original Proceeding
    MEMORANDUM OPINION
    In this original proceeding, Relator John Lawrence Monk seeks mandamus relief
    against the respondent trial judge on the allegation that the trial court has failed to rule
    on Monk’s motion for DNA testing and his motion for appointment of counsel in that
    proceeding. Monk complains that he cannot appeal the trial judge’s ruling without a
    written order denying his motion.
    Monk asserts that the motion for DNA testing was filed on April 30, 2009, but his
    record does not contain that motion. A certified copy of the motion for appointment of
    counsel shows that it was filed on May 4, 2009, so we assume that the motion for DNA
    testing was filed on or about that date as well. Monk’s record also includes a certified
    copy of the State’s proposed findings of fact and conclusions of law and proposed order
    denying DNA testing and appointment of counsel. Monk asserts that he received that
    document on May 28, 2009.
    A trial judge has a reasonable time to perform the ministerial duty of considering
    and ruling on a motion properly filed and before the judge. In re Chavez, 
    62 S.W.3d 225
    ,
    228 (Tex. App.—Amarillo 2001, orig. proceeding); In re Martinez Ramirez, 
    994 S.W.2d 682
    , 683-84 (Tex. App.—San Antonio 1998, orig. proceeding). But that duty generally
    does not arise until the movant has brought the motion to the trial judge’s attention,
    and mandamus will not lie unless the movant makes such a showing and the trial judge
    then fails or refuses to rule within a reasonable time. See 
    Chavez, 62 S.W.3d at 228
    .
    Monk’s record contains certified copies of two letters, dated August 28, 2009 and
    September 9, 2009, respectively. Each letter is addressed to “Dear Sir/Madam,” and
    each requests that the matter be brought to the trial judge’s attention and that a written
    order be entered on Monk’s motion for DNA testing because he cannot appeal in the
    absence of an order. Because these letters do not disclose the addressee, we cannot say
    that the matter has been brought to the trial judge’s attention. Moreover, mere filing of
    a pleading or letter with the clerk does not impute knowledge to the trial court. See In re
    Flores, No. 04-03-00449-CV, 
    2003 WL 21480964
    (Tex. App.—San Antonio June 25, 2003,
    orig. proceeding). The record thus does not show that Monk has brought the matter to
    the attention of the trial judge.
    Because Monk has not shown he is entitled to relief on the record before us, we
    deny the petition for writ of mandamus.
    In re Monk                                                                              Page 2
    REX D. DAVIS
    Justice
    Before Chief Justice Gray,
    Justice Reyna, and
    Justice Davis
    Petition denied
    Opinion delivered and filed May 19, 2010
    Do not publish
    [OT06]
    In re Monk                                                Page 3
    

Document Info

Docket Number: 10-10-00123-CR

Filed Date: 5/19/2010

Precedential Status: Precedential

Modified Date: 10/16/2015