### 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. 03-15-00390- CV

In re Mar tin Alem an

ORI GINAL P ROCEEDI NG F ROM CO MAL CO UNTY

M E M O R A N D U M O PI N I O N
Relator Martin Aleman, an inmate proce eding pro se, has filed a petition for writ of mand am u s , as k i n g this Court to compel the 22nd District Court of Comal County to rule on his motion for judgme nt nunc pro tunc, which seeks to corr ect what Aleman claims is a cler ical err or in his 2002 judgme nt of conviction for the offe nse of ag g ravated robber y . To be entitled to mandamus 1 relief , a relator must establish that: (1) he has no other adequate leg al reme dy to redr ess the alleg ed harm, and (2) under the rele vant fac ts and law, the act soug ht to be compelled is purely minist eria l. 2 An act is min i s terial if it does not involve the exercise of any discretion and the relator has a

See Aleman v. State , No. 03-02-00651- CR, 2004 T ex . Ap p . L EXI S 3162 1 (Tex. App.—Austin April 8, 2004, no pet.); see al s o A l em a n v. State , No. 03-14-00576- CR, 2014 Tex. App. L EXI S 11790, at *1-2 (Tex. A pp.—Austin O ct. 29, 2014, no pet.) (dismissing for want of jurisdiction Aleman’ s appea l from distric t court’s previous denial of his motion for judgme nt nunc pro tunc ).

State ex rel. Y

oung v. Sixth Judicial Dist. Court of Appeal s , 2 3 6 S
. W
. 3 d 207, 210 2 (T ex . Crim. App. 2007) (orig

. proce eding ); State ex rel. Hill v. Court of Appeals for Fif th Di s t
. , 34 S.W .3d 924, 927 (Tex. Crim. App. 2001) (orig . proce eding ).clea

r right to relief

. The re l i ef s o u g ht must be clea r and indisputable, such that its merits are 3 beyond dispute. 4

“‘[C] onsideration of a mo t i o n proper ly filed and befor e the court is minist eria l.’” 5 When a mandamus petition is based on an alleg ation that a trial court has failed to rule on a proper ly filed motion, the relator will not be entitled to mandamus relief unless he establish es t h at the trial court: (1) had a leg al duty to rule on the motion; (2) was asked to rul e o n the motion; and (3) e ither re fused to rule on the motion or failed to rule within a rea sonable time. 6

What is considere d a rea sonable amount of time depends o n t h e circ umstances of
eac h case . No bright-line rule demar cate s the boundarie s of a re as o nable time period. “Many

7 8 indicia are influential, not the least of which are the trial court’s actua l knowledg e of the motion, its overt re fusal to ac t on same, the state of the c ourt’s docke t, and the existence of othe r judicial and administrative matters which must be addre ssed first.” “So too must the trial court’s inhere nt power 9

Hill , 34 S.W .3d at 927; In re Daisy , 156 S.W .3d 922, 924 (Tex. App.—Dallas 2005, 3 orig . proce eding ). See H ill , 34 S.W .3d at 927-28; Daisy , 156 S.W .3d at 924. 4 Hill , 34 S.W .3d at 927 (quoting State ex rel. Curry v. Gray , 7 2 6 S
. W
. 2 d 125, 128 5 (Tex. Crim. App. 1987) (opinion on reh’g )).

In re Keeter , 134 S.W .3d 250, 252 (Tex. App.—Waco 20 0 3 , orig

. proce eding ); 6 In re Villarreal , 96 S.W .3d 708, 710 (Tex. App.—Amarillo 2003, orig . proce eding ). In re Blak

eney , 254 S.W .3d 659, 662 (Tex. App.—Texarkana 2008, orig . proce eding ). 7 Ex parte Bate

s , 65 S.W .3d 133, 135 (Tex. App.—Amarillo 2001, orig . proce eding ). 8 Id

. 9 2to control its own docket be included in the mix .” Moreove r, the relator has the burden to provide 1 0

us with a rec ord sufficie nt to establish his right to mandamus relief

. Acc ording ly , in this case , 1 1 Aleman is require d to show that a proper ly filed motion has awa ited dispositi on for an unrea sonable period of time. 1 2

Her e, the rec ord ref

lects that Aleman’ s motion for judgme nt nunc pro tunc was filed with t h e district cler

k’s office in May 2015, approximately three months ag o. Even if we were to
assume that t h e d i s t ri ct court was made awa re of the motion at that time, three months does not ordinarily constitute an unr ea sonable length of time for a motion to rema in pending

. Moreove r, 1 3 Aleman has failed to provide this Court with any documentation indicating that the district court was asked to r ule on the motion and ref used to do so. On this re cord, we cannot conclude that Aleman is entitled to the ex traordina ry relief reque sted.

Id

. 1 0 See In re Davidson , 153 S.W .3d 490, 491 (Tex. App.—Amar illo 2004, orig

. proce eding ); 1 1 Barnes v. State , 832 S.W .2d 424, 426 (Tex. App.—Houston [1s t Dist.] 1992, orig . proce eding ).

See Blakene

y , 254 S.W .3d at 661; see also Tex. R. Ap p. P. 52.7(a) (1) (relator must file 1 2 wit h p eti tion “a cer

tified or sworn copy of ever y document that is materia l to the rela tor’s claim for relief and that was filed in any underly ing proce eding ”), (2 ) (r el ator must file with petition “a proper ly authenticated transc ript of any rele vant testimony

from any underly ing procee ding” ). See, e.g. , Blakene

y , 254 S.W .3d at 662-63; In re Villarreal , 96 S.W .3d at 711; Bates , 1 3 65 S.W .3d at 136; In re Chavez , 62 S.W .3d 225, 229 (Tex. App.—Amar illo 2001, orig

. proce eding ); see also In re Halley , No. 03-15-00310- CV, 2015 Tex. App. L EXI S 7188, at *4 (Tex. App.—Austin J uly 14, 2015, orig

. proce eding ) (mem. op.); In re Gonzales , No. 07-06-00324- CV, 2006 Tex. App. L EXI S 8057, at *3 (Tex. App.—Amar illo Sept. 6, 2006, orig

. proce eding ) (mem. op.); In re Garcia , No. 04-09-00123- CR, 2009 Tex. App. L EXI S 1541, at *1-2 (Tex. App.—San Antonio Mar. 11, 2009). 3The pe tition for writ of mandamus is denied.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief Justice Rose, Jus tices Pemberton a nd Field Filed: August 26, 2015

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