in Re Lawrence McQueen v. State ( 2010 )

Relator’s Motion for Rehearing Overruled; Petition for Writ of Mandamus Denied; and Supplemental Memorandum on Rehearing Opinion filed February 25, 2010

In The

Fourteenth Court of Appeals

NO. 14-09-00627-CR

In Re Lawrence McQueen, Relator

  ORIGINAL PROCEEDING

  WRIT OF MANDAMUS

SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING

On July 16, 2009, relator, Lawrence McQueen, filed a petition for writ of mandamus in this Court.  See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this Court to compel the Honorable Debbie Mantooth Stricklin, presiding judge of the 180th District Court of Harris County, to rule on or refer his motion and supplemental motion to recuse from his habeas corpus proceeding.  On August 6, 209, we denied relator’s petition because it did not comply with the Texas Rules of Appellate Procedure.  See Tex. R. App. 20.1; 52.7(a)(1).  

Relator has filed a motion for rehearing.  Relator, however, has not met the presentment requirement of his motions to recuse to the trial court.  See Tex. R. Civ. P. 18a(b) (“On the day the motion is filed, copies shall be served on all other parties or their counsel of record, together with a notice that movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge.”); Carson v. Serrano, 96 S.W.3d 697 S.W.3d 697, 698 (Tex. App.—Texarkana 2003, pet. denied) (holding pro se inmate could not complain about trial court’s failure to recuse himself where there was no evidence that he gave notice of expectancy of presentment to judge three days after filing, and there was no evidence judge was presented with motion three days after filing); Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 423 (Tex. App.—Amarillo 1995, no writ) (holding appellant waived right to complain that judge failed to recuse himself where neither notice of expectation of presentment nor its presentment to judge three days after filing was evinced).  Therefore, relator has not shown that the trial court had a ministerial duty to consider his motions.[1]

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s petition for writ of mandamus. 

                                                                                    PER CURIAM

Panel consists of Justices Seymore, Brown, and Sullivan.

Do Not Publish—Tex. R. App. P. 47.2(b).

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[1] Moreover, the copies of relator’s motions are not file-stamped and, therefore, he has not shown that they are actually pending in the trial court.