NO. 07-06-0485-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JANUARY

18, 2007

______________________________ IN RE JOHA NSON LEE WATSON, RELATOR

_______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON PETITION FOR WRIT OF MANDAMUS Relator, Johanson Lee Watson, an indigent inmate, seeks a w rit of mandamus to compel the Honorable Dan Mike Bi rd to consider and rule on hi s applicatio n for writ of habeas corpus and moti ons related ther eto. For the rea sons expres sed below, we deny relator’s request for a writ.
On April 25, 2006, W atson filed an Applicat ion for W ritof Habeas Corpusin the trial courtconten ding tha t the judgment up on which he was conv icted wasvoid. Watson followed his applica tion wit h several motions and other correspondence requesting the trial court to consi der and rule on his applicat ion.
Init ially, we note that the party s eeking mandamus r elief has the burden to provi de
a record sufficie nt to establis h his entitl ement to such rel ief. Walker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992) . The relator in a mandamus proceed ing must file, with hi s petition,2

a certified or sworn cop y of every document that is material to th e relator’s claim for rel ief and that was f iled in an y underlying p roceed ing. T EX . R. A PP . P. 52.3(j)(1)(A), 52.7(a)(1). In the present case, Watson provided copiesof documents th at are material to his claim for relief. W hile some of these docu ments were file-stamped by the trial court’s clerk, they
are neither cer

tified nor sw

orn. As such, Watson has failed to meet his burden of providing
a record sufficie nt to establis h his entitl ement to mandamus reli ef

. Walker , 827 S.W.2d at 837.
Atrial cour

t has a ministe rial duty

to consider and rule on motion s properly filed and pending before the court an d mandamus may is sue to compe l the judge t o act. Saf etyKleen Corp. v. Garcia , 945 S.W.2d 268, 269 (Tex.App.–San A nton io 1997 , orig. procee ding) ( citing O’Donniley v. Golden , 860 S.W.2d 267, 269-70 (Tex.App.–Ty ler 1993,
or ig. proc eeding). To es tablish entit lement to the iss uance of a wri t of mandamus compelling a trial co urt to cons ide r and rule on a pending motion, the relator bears the burden to establish that (1) the t rial court had a legal duty to perfor m, (2) relator made a demand for perfor ma nce of this duty , and (3) the t rial court refused to act. Ston er v. Massey , 586 S.W .2d 843, 846 (Tex. 1979 ). However, the tri al co urt is afforded a reasonable time wit hin whic h to perform this ministerial duty. Safety-Kleen C orp. , 945 S .W.2d at 269. Whether a reasonable per iod of time has laps ed is depe ndent on th e circumstances

of each case. Barnes v. State , 832 S.W.2d 424, 426 (Tex.App.–Hous ton [1 stDist.] 1992, orig. proceeding). Factors relevant to whether a reasonable ti me has lapsed include: thetrial cour t’s actual k nowledge of the motion, its overt refusal to a ct, the state of its docket, and other judicial and ad ministrative duties which it must address. In1 Watson contends that an inmate’s demand for performance is sufficient l y

established by proof that s uch a demand was “ directly mailed” to thetrial judg e. He cites Justice Grant’s conc urrence in Carson v. Serrano , 96 S.W.3d 697, 700 3 re Villarr eal , 96 S.W .3d 708, 711 (Tex.App. –Amarillo 2003, orig. proceeding). The party requesting relief must provide a sufficient recor d to establish his entitle ment to mandamus relief. Walker , 827 S.W.2d at 837.
Conside ring the uncertified and un sworn documents provided, W atson fails t o establish his entitle ment to mandamus relief in thi s case. Wa tson has provided this Court
a file-s tamped cop y of his application for writ of habeas co rpus. Assuming that this application was properly filed w ith the trial court, it w ould impose a leg al duty on t he trial courtto consider and rule on the applicat ion in a reasonable amount of time. See Saf etyKleen Corp. , 9 4 5 S.W.2d at 269. However , documentation pr ovided by

Watson to establish that he made a dem and to the trial court to perform this duty fails to establ ish that
an appropriate demand was made. Watson provi des copies of tw o letters that

he purportedly sent to JudgeBi rd i n an e ffo rt to establi sh his demand for Ju dge Bird to consider and rule on hi s applicatio n. However, these letters demand that Jud ge Bird rule
on Watson’s “Motion . . . toCompel Trial Judge/Trial Court to act, rule on pending Motion(s) .” At best, these documents show that Watson made demand on Judge Bir d to consider and rule on a motion to compel a ruling on some unnam ed motion(s). These letters do not establish that Watson made demand upon the trial court to consi der and rule
on his pending appli cation for w rit of habeas corpus. From the do cuments presented by Watson, we cannot conclude that the tria l cou rt wa s actually aware of the pen ding application for writ of habea s corpus. 1(Tex.App.–Texarkana 2003, pet. denied), as supp ortfor this content ion. However, Carson

addre ssed the sp ecific presentment requirement

for a motion for rec usal rather than a demand for performance of a leg al duty. E ven if thi s Cou rt were to determine that the concurrence cited by Watson were controlli ng in thiscase, an iss ue which w e need not decide, Watson’s demand requested only that the trial court consi der an d r ule on an unnamed motion and fails to esta blish that the trial cour t wasactually aware of W atson’s application for writ of habeas corpus. 4 Further, W atson’s uncertified an d unsworn d ocumentation incl udes no eviden ce t ha t the trial cour

t overtly refused to act on his application. Neither has Watson provided any evidence rega rding the s tate of the trial court’s doc ket or wh ether the court has other judicial or

administrati ve duties w hich must be addr essed.
We concl ude that relator has not satisfied his burden to show his entitlement to mandamus relief. Walker , 827 S.W .2d at 837. Accordingly, W atson’s petition for w rit of mandamus is denied.

Mackey K. Hancock Justice