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IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE:

D

AVID ROSS RAMIRES ,
RELATO R §
§
§ ORIGINAL PROCEEDING

MEMORANDUM OPINION
David Ross Ramires , Relator, requests a writ of mandamus directing the tria l court to grant the relief sought in his Article 11.072 application for writ of habeas corpus in trial court

c ause n u mb er 20 21040089 and s et aside his convictions in trial court cause numbers 19696 and
19697

. 1 We deny the writ

.

B ACKGROUND Relat or was charged by ind ictment with felony possession of a controlled substance and
drivin g while intoxicated (DWI) with a ch il d passenger . Pursuant to a plea bargain agreement
with the State, h e pleaded “guilty, ” and the trial cour t assessed his punishment at im pr iso nm ent for ten years, su spended for a term of six ye ars , in the possession case , and confinemen t in a state jail f ac il ity for t wo years, suspended for a term of five years, in the DWI case

. Subs equently, the
State filed a motion to revoke Relator ’ s commu nity supervision

. On April 8 , 2021, Re lator ’ s n ew counsel filed a n app lication for writ of habeas corpus in
the trial c ourt under code of cri mi nal p rocedure Article 11.072 , asserting that Relator ’ s guilty plea was involuntary an d tha t he was deni ed discov e ry

. On April 18, Relator filed an original proceeding in this Court requ esting a writ of mandamus dire cting the tri al c ourt to is sue a wri t of

1 The Respondent named in the petition i s the Honor able Chris R. Day , Ju dge of the 2nd J u dicial Distric t Cour t in Ch erokee Co unty, Texas. The Real P art y in Interest is t he St ate of Tex as

.2 habeas corpus

. On July 30, w e denied the petition, observing that the writ issued by operation of
law when the a pplication was filed

. 2
On Septe mber 15 , Rela tor fil ed this o riginal proceeding

. On Octo ber 27, the State filed a

resp on se. On October 29, Relator filed an objection and motion to strike the State ’ s response based on its failure to comply with the rules of appellate proc edure. Because we decide th e issues
in this case based solely on Relator ’ s petition, we di smiss the mot i o n to strike as moot

.

F AILURE TO E NTER T IMELY O RDER
In Relator ’ s first issue, h e contends that he is entitled to mandamus relief becaus e Respondent failed to enter a timely order granting or denying the re lief sought i n his habeas application

. We dis agr ee

. Mandamus is an ex traordinary remedy that is available only in limited circumst ances. Walker v. Packer , 8 27 S.W.2d 833, 840 (Tex. 1992)

. In a cr iminal cas e, a relator is entitled to mandamus relief only if he establishes that (1) he has no adequate reme dy at law, and (2) th e act he seeks to compel is ministerial. In re ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013); Bowen v. C a rnes , 343 S.W.3d 80 5, 810 (Tex. Crim. App. 2011)

. An act is ministerial
whe n the law spells ou t the official ’ s duty wi th such certainty tha t nothing is left to the exercise
of discretion. Anderson v. City of Seven Points , 806 S.W.2d 791, 793 (Tex. 1991).
A trial court has a mi nisterial duty to consider and rule on m otions properly filed and pending before it, and mandamu s may issue to compe l the court to act. In re Pete , 589 S.W.3d 320, 321 (Tex. App

. — Hous t on [ 14 th Dist.] 2019, orig. proceeding). Before ma ndamus may issue, a relator must establish that the court ( 1) had a legal duty to rule on the motion , (2) was
asked to r ule on the motion, and (3) failed or refused to rule on the motion with i n a reas on a b le
time. Id. A relator has the burden to provide a s ufficient record to establish that he is entitled to
relief. Id.
In arguing that he is entitle d to mandamus relief, R el ator observes that he filed his application fo r writ of habeas corpus in the tri al court, the State filed a timely answer, 3 and the

2 See T EX

. C ODE C RIM

. P ROC

. A N N

. a rt. 11.072 § 4 (a) (West 20 05 )

.

3 U nd er Article 11.072 , the state is allowed to f ile an answe r within thir ty days of service of the h abeas ap plicati on. T EX

. C ODE C RIM

. P ROC

. A NN

. a rt. 11. 072 § 5(b), (c) (We st 2005 ).3 cour t failed to timely enter an order gr anting or denying rel ief. 4 However, although Relator
attached a file

- stamped copy of the applic ation to his mandamus petition, he has not
demonstrated that his appl ication was properly presented to the trial court for a ruling. Showi ng that a motion was filed with the court clerk do es not constitute proof that it wa s brought to the
tria l court ’ s attention o r presented to the court with a request for a ruling. In re B lakeney , 254 S.W.3d 659, 662 (Tex. App

. — Texa rkana 2008, orig. p roceeding). Because Relator has not
shown that his application was properly presented to the trial court for a ru ling , he has failed to meet his burden of establishing that he is entitled to re lief. See Pete , 589 S.W.3d at 321

.

C ASE T RANSFER Also in his first issue, Relator r aises th e issue of a dispute regarding the court in w hich
his habeas proceeding is pendi ng

. H is community su pervision was imposed in the 2nd Judici al
District Court , so he appropriately filed his habeas application in that cou rt. 5 However, the State
filed its answer in the 369th Judicial District Court, citing an attached docketing order that

g ov erns the distr ibution of post

- judgment cases in the Cherokee Cou nty district courts in which

no current district judge entered the ori gin al judgment

. In h is petition, Relator argue s that only
the 2nd Judici al District Court ma y enter the order granting o r denying habeas re lief in this case.
W e c an not a ddress this issue be c a use it is not ripe for our review. The courts of this

s t a te a re not empowered to give a dv i sor y opinions. P a tterson v. P l a nned P a renthood of
Houston a nd South e a st Te x a s, Inc

. , 971 S.W .2 d 439, 443 ( Tex. 19 98)

. This prohibition extends

to c a ses t h a t a re not yet ripe

. Id

. A c a se is not ripe when its resolution depends on c ontingent or hypotheti c a l f a c ts, or upon events t h a t h a ve not yet come to p a ss

. Id

. In this c a se, Relator
does not c l a im t h a t a court other than the 2nd Judici al District Court enter ed an order granting or denying habeas relief

. Consequently, we conclude t h a t the comp l a int is not ripe a nd we c a nnot give a n a dv i sor y opinion in the m a tter

. See id

.

4 “ Not later than the 60 th day after t h e day on which the state ’ s answer i s fil ed, the tr ial court shall enter a written or der granting or den y ing the relie f sought in the a pplicati on. ” Id

. § 6 (a) (We st 2005 )

.

5 An application filed under Article 11.072 “must be filed with the clerk of the cour t in which community supervi sion was imposed.” Id. § 2(a) (West 2005)

.4 E FFECT OF L APSED T IME L I MI T ON J URISDICT ION
I n Relator ’ s second is s ue, he argues that when the legislatively p rescrib ed time expired, the trial court lost its ju ri sdiction to enter the order

. C onsequently, he argues that his right to f air process was violated and we must order Re sp ondent to set aside his convictions

. W e cannot conclude that the trial court ’ s failure to enter an order within the legislat ively

presc ribed time defeat s its ju ris diction in th is case. The general rule i s that where jurisdict ion is once lawfully and prop er ly acquired, n o subseq ue nt fact or event in the case serves to defeat that jurisdiction. Flynt v. G arcia , 587 S.W.2d 109, 109

- 10 (Tex. 1979). We see no reason w hy the

g eneral r ule should not apply in a n Article 11.072 case in which the trial court failed t o timely

enter its ord er , a nd Appellant points to none. Rather, in support of his contention, Relat or cites Ex parte Tomlinson as “ surm ising that had the trial cou rt ’ s order issued outsi de ‘ the statutory period ’ the appeal would not pr operly be before t h at cour t of appeals. ” See Ex parte Tomlinson , 295 S.W.3d 412, 418 n. 4 (Tex. App

. — C orpus Christi 2009 , no pet .) (citing Awadelkariem v.
St ate , 974 S.W.2d 721, 728 (Tex. Crim. App. 1998) )

. In Tomlinson , a visiting judge granted
Tomlinson ’ s Article 11.072 app li cation for writ of habeas corpus and signed an order granting
him a new trial. See id. at 4 16. Subsequently, the court ’ s presiding judg e granted the St ate ’ s motion for reconsideration and denied Tomlinson ’ s application. See id. at 4 1 7

. On appeal , the

par ti es did not dispute the court ’ s jurisdiction to deny the ap plication, but the court of appeals
observed in a footnote that the order den ying the application was properly before the court because it was entered within the time prescribed by Art ic le 11.072. S ee id. at 418 n. 4

. Even if this footnote in Tomlinson suppo rt s Rel ato r ’ s contention that the trial court here
lost it s jurisdiction whe n the le gislatively prescribed time expired , t he authority cited by the court of appeals i n that case has since been o v er rule d

. See Kirk v. State , 454 S.W.3d 511, 515 ( Tex. Crim. App. 2015) ( overruling Awadelkariem in per tinent part ). In Awadelkariem , the issue was
whether the trial court could rescind an order granting a motio n for new trial in a criminal case

. See Awadel ka riem , 974 S.W.2d at 722. The c ourt of crimina l ap peals held that such an order

may be rescinded , but only during the seventy

- five

- day p eriod during which the court was permitted by the appellate rules to rule on the motion. Id

. at 728

. Notably , t he cour t did no t hold
that the trial court lost its jurisdiction after the seventy

- five

- day perio d, but instea d based the
limit on the court ’ s “ review of the issue, our appellate rules, the Texas Supreme Cou rt ’ s5 pron ouncement [of a seventy

- five

- day limi tat ion on va cat ing the grant of a new trial in a civil

case ] , and the authority in other jurisdi ctions [. ] ” See id.
In Kirk , the State sou ght to ov erturn the time limit pronoun ced in Awadelkariem

. T he

co urt of criminal appeals noted that in Awadelkariem , it relied h ea vi ly on Texas Supreme Court

c asel a w in impos ing the time limi t

. See Kirk , 454 S.W.3d at 513. It further noted that th e
supreme court ha d since overrul ed that caselaw

. See id. Finding the supr eme court ’ s reasoning persuasive, t he c ourt of criminal appeals f ollowed suit and abandoned the time limit imposed in
Awadelkariem

. See id. at 5 15. Thus, Relator ’ s only cited au thority for his content ion that the trial

court here no long er has ju risdiction to e nter an order in this case relie s on authori ty that has be e n overruled to any extent it could have supported that contention. See id. ; Tomlinson , 295 S.W.3d

at 418 n. 4

. Beca use Relator ’ s contenti on is not supported by persuasive authority, and we see no

r e ason not t o follow the gene ral rule of juris diction retent i o n, we conclude that the tri al court retains juri sdiction in this case. See Flynt , 587 S.W.2d at 109

- 10

. Accordingly, Relator ’ s second
i ssue presents no grounds for mandamus relief

.

D I SPOSITION Having dete rmined that Relat o r failed to establish h is enti tl em ent to mandamus reli ef, w e de ny t he peti tion for writ of man damus. We l ift our stay of October 29, 2021.

G REG N EELEY Justice

Opinion de livered December 8, 2021

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH)6 

## COURT OF APPEALS

TWELFTH COURT OF A PPE ALS DISTRICT OF TEXA S

JUD G MEN T

DECEMBER 8 , 2021

N O. 12

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DAVID RO SS RAMIRES , Relator V.

HON. CHRIS R. DAY , Respondent

O RIGINAL P ROCEEDING

ON THI S DAY came to be heard th e p etition for w r it of mandamus filed by
Davi d Ross Ram ire s ; who is the relator in a p pellate cause number 12

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- CR a nd the applic ant in trial c ourt c a use number 20 21040089 , originating in the 2nd Judicial Di s tric t Court
of Chero kee County , Tex as . Sa id pet ition for w rit of mandamus having bee n fi led herein on
October 28 , 20 2 1 , and the same having been du ly cons i der ed, because it i s the op inion of thi s Court t hat the wri t should not issue , it is there fore CONSID ER ED, ADJUDGED and OR DERED
that the said petition for writ of mandamus be, and the same is, hereby denied

. Greg Neeley, Justice

. Panel consisted o f Worth e n , C.J., Hoyle, J. and Neel ey, J.