in Re Gary Lee Mount ( 2019 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
January 10, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-01101-CR
IN RE GARY LEE MOUNT, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
248th District Court
Harris County, Texas
Trial Court Cause No. 1449196
MEMORANDUM OPINION
On Friday, December 28, 2018, relator Gary Lee Mount filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52.
In the petition, relator complaining that the Honorable Katherine Cabaniss Parsley, former
presiding judge of the 248th District Court of Harris County, 1 has failed to provide him
with certain information regarding motions he has filed under chapter 64 of the Texas Code
of Criminal Procedure, which governs DNA testing. He asks this court to compel the trial
1
The Honorable Hillary Unger became the presiding judge of the 248th District Court on
January 1, 2019.
judge to appoint counsel for him and conduct a hearing on his motions.
“A trial court has a ministerial duty to consider and rule on motions properly
filed and pending before it, and mandamus may issue to compel the trial court to
act.” In re Henry, 525 S.W.3d 381 (Tex. App.–Houston [14th Dist.] 2017, orig.
proceeding) (per curiam). However, to be entitled to such relief, a relator must
establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked
to rule on the motion; and (3) failed or refused to rule on the motion within a
reasonable time. The record must show both that the motion was filed and the trial
court has not ruled on the motion within a reasonable time after being requested to
do so. See In re Foster, 503 S.W.3d 606, 607 (Tex. App.–Houston [14th Dist.] 2016,
orig. proceeding) (per curiam).
Appellant made no such showing. Further, Judge Parsley is no longer on the
bench, so we cannot compel her to act and therefore cannot grant the requested act. We
will not order the current trial judge to act until relator has properly presented the motion
to the current trial judge.
Because we cannot grant the requested relief, we deny the petition for
mandamus.
PER CURIAM
Panel consists of Justices Christopher, Hassan, and Poissant.
Do Not Publish—Tex. R. App. P. 47.2(b).
2