In Re: Jerry Lamontry Jones--Appeal from 202nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00218-CR

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IN RE:

JERRY LAMONTRA JONES

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jerry Lamontra Jones has filed what we have deemed to be a petition for writ of mandamus. The thrust of his claim appears to be that he has either (a) filed an application for a post-conviction writ of habeas corpus and been denied a hearing on such application, see Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005), or (b) filed an application for a bench warrant in conjunction with a motion for new trial, and that the trial court has refused to rule on his application. Given the state of the record before us, we deny Jones' petition for writ of mandamus.

I. Procedural History of Jones' Underlying Criminal Conviction

On October 3, 2000, Jones waived his right to a jury trial and pled guilty to the offense of possession of a deadly weapon in a penal institution, a third-degree felony. // See Tex. Pen. Code Ann. 46.10 (Vernon 2003). The trial court sentenced Jones to ten years' imprisonment pursuant to a negotiated plea agreement. The record before us reflects Jones committed his crime in a penal institution while serving a sentence for another felony offense. Thus, our law required the trial court to order that Jones not begin serving his ten-year sentence for the current charge until after he had completed service of his sentence for the Smith County crime. See Tex. Code Crim. Proc. Ann. art. 42.08(b) (Vernon Supp. 2004 2005). //

II. The Mandamus Jurisdiction of a Texas Intermediate Appellate Court

Mandamus will issue only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion, or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding).

A trial court is required to consider and rule on a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266 67 (Tex. Civ. App. Tyler 1976, orig. proceeding). When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, orig. proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (holding trial court abused its discretion by refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App. Houston [14th Dist.] 1990, orig. proceeding) (finding mandamus appropriate to require trial court to hold hearing and exercise discretion). While we have jurisdiction to direct the trial court to make a decision, we may not tell the court what that decision should be. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex. 1962); O'Donniley v. Golden, 860 S.W.2d 267, 269 70 (Tex. App. Tyler 1993, orig. proceeding).

III. Jones' Petition for Writ of Mandamus

The clerk of this Court has contacted the Bowie County District Clerk's Office, which reported that Jones has filed neither an application for post-conviction writ of habeas corpus nor an application for a bench warrant. And Jones has not submitted a record to this Court (other than his one-page, entirely handwritten petition) suggesting otherwise. Therefore, from the information and record available to this Court, we have no evidence that the trial court has failed to perform the ministerial act of timely ruling on an application filed by Jones. Accordingly, we deny Jones' petition for writ of mandamus.

Jack Carter

Justice

Date Submitted: October 25, 2005

Date Decided: October 26, 2005

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