In Re: Frankie Williams--Appeal from 114th District Court of Smith County

NO. 12-07-00362-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: FRANKIE WILLIAMS,

RELATOR ORIGINAL PROCEEDING

MEMORANDUM OPINION

Frankie Williams seeks a writ of mandamus ordering the trial court to rule on a motion Williams alleges he filed on or about July 2007, in which he sought a nunc pro tunc judgment. Williams explains that he was charged with manufacture of a controlled substance and pleaded guilty to possession of a controlled substance pursuant to a plea bargain. According to Williams, the plea agreement provided that the manufacture of a controlled substance charge would be removed from his inst. record(s), files, and parole file. He further alleges that this did not occur, which prompted the filing of his motion for nunc pro tunc judgment.

To obtain mandamus relief in a criminal case, the relator must establish that (1) the act sought to be compelled is ministerial and (2) there is no adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App.1987) (orig. proceeding). When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial court to act. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). A trial court is required to consider and rule on a motion within a reasonable time. Id.

For mandamus to issue requiring a trial court to rule on a pending motion, the relator must also establish that the trial court was asked to perform the act but failed or refused to do so. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992) (orig. proceeding). Where the relator makes the requisite showing, we have jurisdiction to direct the trial court to rule on the motion, but we may not order the trial court to make a particular ruling. See id. at 684.

Williams has not filed a record in support of his petition. See Tex. R. App. P. 52.7(a) (requiring record to be filed with petition and prescribing contents of record). Consequently, Williams s petition does not demonstrate that his motion was filed with the trial court, that the motion was called to the trial court s attention or presented to the trial court for a ruling, or that the trial court refused to rule on the motion. Thus, Williams has not shown that he is entitled to mandamus relief. Accordingly, the petition for writ of mandamus is denied.

SAM GRIFFITH

Justice

Opinion delivered October 11, 2007.

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

(DO NOT PUBLISH)