Petition for Writ of Mandamus Denied and Memorandum Opinion filed June 

13, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00461-CR

IN RE KERRY LEE BEAL, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On May 29, 2013, relator 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 sets forth a list of requests he has made to the Honorable James 

Shoemake, presiding judge of the 434th Judicial District Court of Fort Bend 

County, and asks this Court to compel Judge Shoemake to grant his requests for a 

hearing and rulings on various motions. Relator also complains of the trial court 

granting a motion to quash his subpoena and granting the State’s motion for a 

continuance.
2

To be entitled to mandamus relief in a criminal case, a relator must show 

that he has no adequate remedy at law to redress his alleged harm, and what he 

seeks to compel is a ministerial act, not involving a discretionary or judicial 

decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 

236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). When a motion 

is properly filed and pending before a trial court, the act of considering and 

resolving it is ministerial, not discretionary. Ex parte Bates, 65 S.W.3d 133, 134–

35 (Tex. App.—Amarillo 2001, orig. proceeding).

This court is empowered to compel by writ of mandamus a district court to 

consider and rule on properly filed pending motions if (1) relator has asked the trial 

court to rule, and (2) the trial court either refused to rule or failed to rule within a 

reasonable time. See Barnes v. State, 832 S.W.2d 424, 426, 427 (Tex. App.—

Houston [1st Dist.] 1992, orig. proceeding); Von Kolb v. Koehler, 609 S.W.2d 654, 

655-56 (Tex. Civ. App.—El Paso 1980, no writ). There is no bright-line rule 

establishing a reasonable time period. Ex parte Bates, 65 S.W.3d at 135. Some of 

the factors involved in the determination include the trial court’s actual knowledge 

of the motion, any overt refusal to act on it, and the state of the trial court's docket. 

See id. (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979)). A relator has 

the burden of providing this court with a sufficient record to establish his right to 

mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig. 

proceeding); see Tex. R. App. P. 52.3, 52.7. 

None of the requests that relator claims were filed in the trial court are in the 

record before this court. Accordingly, relator has not demonstrated the motions 

are actually pending in the trial court and the trial court is aware of the motions. 
3

Further, the record does not contain the trial court’s order granting the motion to 

quash or the State’s continuance. See Tex. R. App. P. 52.1(k)(1)(A).

For these reasons, relator has not established his entitlement to the 

extraordinary relief of a writ of mandamus and we deny relator’s petition for writ 

of mandamus.

PER CURIAM

Panel consists of Justices Boyce, Jamison and Busby.

Do Not Publish — TEX. R. APP. P. 47.2(b).