in Re: Richard Randle ( 2010 )

NO. 12-10-00172-CR

                         IN THE COURT OF APPEALS        

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

IN RE:                                                                 '                

RICHARD RANDLE,                                        '                 ORIGINAL PROCEEDING

RELATOR                                                          '                

                                                      MEMORANDUM OPINION

PER CURIAM

            Relator Richard James Randle requests a writ of mandamus directing the trial court to rule on the motion for reformation of sentence that he alleges he mailed to the trial court.

            A trial court has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the court.  In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding).  But that duty generally does not arise until the movant has brought the motion to the trial court’s attention.  See id.   Mandamus will not lie unless the movant shows the trial court is aware of the motion but has failed or refused to rule within a reasonable time.  See id.  Moreover, a relator must furnish a record showing that he is entitled to the requested relief.  See Tex. R. App. P. 52.7(a)(1) (relator must file certified or sworn copy of every material document filed in any underlying proceeding).

            Here, Relator has not filed a copy of his motion for reformation of sentence. Consequently, we cannot say that the motion has been received by the trial court or that the trial court has had a reasonable time to rule on the motion. See In re Chavez, 62 S.W.3d at 228.

            Accordingly, Relator’s petition for writ of mandamus is denied.^[1]

Opinion delivered July 30, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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^[1] Relator contends that a defect which renders a sentence void may be raised at any time.  The case he cites, Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006), presents a fact situation similar to the one in the present case.  There, the court of criminal appeals held that an illegal sentence claim similar to Relator’s may be raised for the first time on an application for writ of habeas corpus.  See id. at 511.  The procedure for filing a postconviction habeas application to seek relief from a final felony conviction in a Texas court is found in article 11.07 of the Texas Code of Criminal Procedure.  The court of criminal appeals has exclusive authority to grant postconviction relief in a felony case.  See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).