## NO. 12
- 19
- 00387
- CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE: DEDRICK MATTHEWS,
RELATOR § § § ORIGINAL PROCEEDING

MEMORANDUM OPINION PER CURIAM Dedrick Matthews , acting pro se, filed this original proceeding to challenge Respondent’s failure to rule on his motion to correct illegal sentence

. 1 We deny the writ.

P REREQUISITES TO M ANDAMUS To obtain mandamus relief in a criminal case, the relator must show that he does not have an adequate remedy at law and the act he seeks to compel is ministerial (not involving a discretionary or judicial decision). State ex rel. Young v. Sixth Judicial D ist. Court of Appeals , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). If the relator fails to satisfy either prong of this test, mandamus relief should be denied. Id

.

A VAILABILITY OF M ANDAMUS To obtain a writ of mandamus compelling a tria l court to consider and rule on a motion, the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Molina , 94 S.W.3d 885, 886 (Tex. App.

– San Antonio 2003, orig. proceeding). Generally, a trial court has a nondiscretionary duty to consider and rule on a motion within a reasonable time. In re Thomas , No. 12

– 05

– 00261

–

1 Respondent is the Honorable Christi J. Kennedy, Judge of the 114th District Court in Smith County, Texas. The State of Texas is the Real Party in Interest.2 CV, 2005 WL 2155244, at *1 (Tex. App.

– Tyler Sept. 7, 2005, orig. proceeding ) (mem. op.). However, a trial court cannot be expected to consider a motion not called to its attention. See In re Chavez , 62 S.W.3d 225, 228 (Tex. App.

– Amarillo 2001, orig. proceeding). It is incumbent upon the relator to establish that the motion has been called to the trial court’s attention. See id

. In 2008, Relator was convicted of felony bail jumping. See Matthews v. State , No. 06

- 08

- 00076

- CR, 2008 WL 4949245 (Tex. App.

— Texarkana N ov. 21, 2008, no pet.) (mem. op., not designated for publication) (affirming conviction). Relator states that he filed his motion to correct illegal sentence in July 2019 and wrote status letters in September and October “into the 114th Judicial Smith Cou nty, Texas District Court

. ” However, Relator presents no evidence demonstrating that his status letters were actually received by Respondent. See In re Taylor , No. 06

- 16

- 00016

- CV, 2016 WL 1435386, at *1 (Tex. App.

— Texarkana Apr. 12, 2016, orig. proceedi ng) (relator’s letters to court were not file

- marked or accompanied by other evidence showing their receipt, and did not show “the trial court received, was aware of, and was asked to rule on his pleadings[]”). Nor does Relator’s petition contain evidence , such as a docket sheet, demonstrating that the trial court has not ruled on his motion. See In re Creag , No. 12

- 17

- 00191

- CV, 2017 WL 2665987, at *1 (Tex. App.

— Tyler June 21, 2017, orig. proceeding) (mem. op.); see also In re Vasquez , No. 05

- 15

- 00592

- CV, 2015 WL 2375504 (Tex. App.

— Dallas May 18, 2015, orig. proceeding) (mem. op.) (denying petition that failed to include a docket sheet or other form or proof that trial court had not ruled on motion). Even assuming Respondent received notice of the motion and has not yet ruled , s he still has a reasonable time in which to rule once the matter is called to h er attention. See Thomas , 2005 WL 2155244, at *1

. Whether the trial court has had a reasonable time within which to rule depends on the circumstances of each case, and “no bright

- line demarcates the boundaries of a reasonable time period.” Ch avez , 62 S.W.3d at 228

. “Its scope is dependent upon a myriad of criteria, not the least of which is the trial court’s actual knowledge of the motion, its overt refusal to act on same, the state of the court’s docket, and the existence of other judicial a nd administrative matters which must be addressed first.” Id . at 228

– 29

. In this case, Relator presents no evidence of the number of other cases, motions, or issues pending on Respondent’s docket, those which have pe nded on the docket longer than the present case, those pending on the docket that lawfully may be entitled to preferential settings, or Respondent’s schedule. See id

. at 229

. Therefore, assuming that Relator’s motion was brought to Respondent’s attention, we cannot say that a reasonable time3 for ruling has passed. See id

. at 228

– 29 ; see also In re Halley , No. 03

- 15

- 00310

- CV, 2015 WL 444883 1, at *2 (Tex. App.

— Austin July 14, 2015, no pet.) (mem. op., not designated for publication) (six month delay not unreasonable length of time for motion to remain pending)

. Accordingly, under these circumstances, Relator has not established his entitleme nt to mandamus relief.

D ISPOSITION Because Relator has not shown that he is entitled to mandamus relief, we deny Relator’s petition for writ of mandamus. Opinion delivered December 4, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)4 

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

DECEMBER 4 , 2019 NO. 12
- 19
- 00387
- CR

DEDRICK MATTHEWS, Relator V. HON. CHRISTI J. KENNEDY , Respondent

O RIGINAL P ROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by Dedrick Matthews; who is the relator in appellate cause number 12

- 19

- 00387

- CR and the defendant in trial court ca use number 114

- 0921

- 07, which is no longer pending on the docket of the 114th Judicial District Court of Smith County , Texas. Said petition for writ of mandamus having been filed herein on November 21, 2019, and the same having been duly considered, becau se it is the opinion of this Court that the writ should not issue , it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied

. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.