### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00094- CV

In re Mic hael McG oldrick

ORI GINAL P ROCEEDI NG F ROM WI LLIAM SO N COUNTY

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

Relator Michae l McGoldrick, an inmate, has filed a pro se petition for writ of mandamus in this Court. See Tex. Go v ’t C o d e Ann. § 22.221 (West 2004). I n the petition, McGoldrick seeks a writ requiring the t rial court to rule on his motion for a copy of the cler k’s

rec ord and repor

ter’s rec ord from his trial. McGoldrick contends that the rec ord is nece ssary so that he may prepa re his post-convic tion petition for writ of habe as cor pus. For the following rea sons, 1 we de ny McGoldrick’ s petition for writ of manda mus. As an initial matter, we addre ss our jurisdiction to consider McGoldrick’ s mandamus petition. Gene rally , an intermediate court of appea ls has no ju ri s d i ction over post-conviction applications for writ of habeas corpus in felony case s. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2012); see also Ex parte Martinez , 175 S.W .3d 510, 512–13 (Tex. A pp.—Texarkana 2005, orig

. proce eding ); Self v. State , 122 S.W .3d 294, 294–95 (Tex. App.—Eastland 2003, no pet.).

McGoldrick appea led the con v i ct i o n from which he now seeks the cler k’s rec ord and 1 repor ter’s rec ord. McGoldrick’ s attorney was provided acc ess to the appellate rec ord, which he used to prepa re the appellate bri ef. This court aff irmed McGoldrick’ s conviction. See McG oldrick v. State , No. 03-07-00132- CR, 2007 W L 2462035 (Tex. App.—Austin Aug . 29, 2007, no pet.).Simi larly , an intermediate appellate court has no authority to compel a trial court to rule on matters

rela ted to a petition for writ of habea s corpus. See In re McAfe e , 5 3 S

. W

. 3 d 7 1 5 , 717–18 (Tex. App.—Houston [1st Dist.] 2001, orig

. proce eding ) (conc luding intermediate appellate court could
not order trial court to rule on habea s petition); see also In re Fierro , No. 03-12-00018-CV, 2 0 1 2 WL 414020, at *1 (Tex. App.—Austin Fe b. 9, 2012, orig

. proce eding ) (mem. op., not desig nated for publication) (“[C] omplain t s re gar d i ng the trial court’s failure to addre ss a rec usal motion filed in

connec tion with

. . . [a] habea s proce eding should be addre ssed to the Court of Criminal Appea ls.”). Howeve r, the court of criminal appea ls has rec ently held that its “exclusive Article 11.07 jurisdiction [ d o es not] divest[] an appellate court of jurisdiction to decide the merits of a mandamus petition al l egi n g that a district court is not ruling on a motion when the rela tor has no Article 11

. 0 7 application pending .” Padieu v. Court of App ea l s o f T ex . , Fifth Dist. , No. AP-76,727, 2013 WL 85372, at *2 (Tex. Crim. App. J an. 9, 2013) (orig

. proce eding ). McGoldrick’ s mandamus petition in d ic a te s th a t h e h a s n o t y e t f

il e d a p e ti ti o n f

o r w r it o f h a

b e a s c o r p u s . T h e r e f

o r e , w e h a v e ju r is d ic ti o n to hear his mandamus petition. See id. We next turn to the merits of McG oldrick’s c laim. To demonstrate entitlement to a writ of mandamus in a criminal case , a rela tor must establish that (1) a minist eria l act, not a discretionar y or judicial decision, is being soug ht, and that (2) there is no other adequa te leg al reme dy at law to r edre ss the alleg ed harm. State ex. rel. Y oung

v. Sixth Judicial Dist. Court of Appeals at Texarkana , 236 S.W .3d 207, 210 (Tex. Crim. App. 2007, orig

. proce eding ). A trial court has a minist eria l duty to consider and rule, within a rea sonable time,

on moti o n s p ro p er l y filed and pending befor e the court. See In re Layton , 257 S.W .3d 794, 795 (T ex. App.—Amar illo 2008, orig

. proce eding ). Howeve r, a court is not require d to consider a

2m o tion not called to its attention. Metzger v. Sebek , 892 S.W .2d 20, 49 (Tex. Ap p . — Ho u s t o n [1st Dist.] 1994, writ denied)

.

Acc ording to the document attache d to McGoldrick’ s petition, he twice filed motions for leave to obtain copies of the rec ords and he “re spectfully reque sts th at s ai d judge answe r said motion.” McGol d ri ck fi l ed t he first motion on or about Marc h 25, 2011, and he filed the second motion on J une 8, 2011. Admittedly , the trial court has had a rea sonable amount of time to rule on the m otions, which is a ministerial ac t subject to mandamus re lief. See State e x. rel. Hill v. C ourt of Appeals for Fifth Dis t. , 34 S.W .3d 924, 927 (Tex. Crim. App. 2001) (orig . proce eding ).

Howeve r, fili n g a m o tion with the district cler k does not establish that the motion

was broug ht to the attention of the trial co u rt b eca use the cler

k’s knowledg e of the motion is not imputed to the trial court. In re Chavez , 62 S.W .3d 225, 228 (Tex. App.—Amar illo 200 1 , o ri g. proce eding ). Be cause McGoldrick’ s petition fails to demonstrate that his motion has actua lly been broug ht to the trial court’s attention or prese nted for a ruling , we cannot hold under this rec ord that the trial court failed to perf orm a non-discre tionary act. There fore , we deny McGoldrick’ s petition for wr it of mandamus without prejudice

. See Tex. R. App. P . 52.8.

The pe tition for writ of mandamus is denied.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Filed: January

29, 2013

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