                                        NO. 07-10-0395-CV

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL A

                                       NOVEMBER 16, 2010

                              ______________________________


                            IN RE ALFRED LEE STONE, RELATOR

                            _________________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                    MEMORANDUM OPINION


        Relator, Alfred Lee Stone, proceeding pro se and in forma pauperis, has filed a

myriad of documents and pleadings in this Court. 1 Included within those documents is

a pleading entitled Original Writ of Mandamus, wherein Relator requests this Court to

compel the Honorable David L. Gleason, retired judge of the 47th District Court of Potter

County, Texas, 2 to rule on a number of motions purportedly filed with the trial court. In


1
 Relator has filed a document entitled Original Writ of Mandamus, which we construe as a petition for writ
of mandamus, together with a Motion to Suspend Writ of Mandamus, which we construe as a motion to
abate the mandamus proceeding initiated by his Original Writ of Mandamus. Additionally, Relator has
filed (1) a Motion to Supplement the Record, (2) a Request for Service, Filing of Papers, (3) a Motion to
Forward the Record, (4) a Motion to Withdraw the Record on Appeal, (5) a Motion for Judgment of
Acquittal, (6) a Motion to Reform Judgment and Sentence, and (7) a Request for Serving and Filing of
Pleadings and Other Papers. In addition to the documents purporting to seek affirmative relief, Relator
has filed an Affidavit of Inability to Pay Costs on Appeal, two separate documents entitled Proof of
Service, and a document entitled Service of the Record on All Parties.
2
 Judge Gleason was succeeded by the Honorable Hal Miner, who has since been succeeded by the
Honorable Dan Schaap. Rule 7.2(a) of the Texas Rules of Appellate Procedure provides for an automatic
substitution of a public officer where appropriate.
addition to seeking mandamus relief, by separate correspondence received the same

day, Relator has filed a Motion to Suspend Writ of Mandamus, requesting this Court to

suspend the writ of mandamus until a hearing is held and "judgment" entered on his

Motion to Reform Judgment and Sentence. For the reasons expressed herein, we deny

the request for mandamus relief, deny the request to suspend this mandamus

proceeding, and deny the motions ancillary to this mandamus proceeding.


                                     Background


      Each of the documents filed by Relator relates to a prior conviction in cause

number 31,986-A, in the 47th District Court in and for Potter County, Texas. In that

cause, Relator was sentenced to twenty years confinement for the offense of

aggravated assault. The records of this Court reflect that on May 9, 1994, Relator filed

a direct appeal of that conviction; however, on August 6, 1994, he filed a pro se motion

to dismiss the appeal. By opinion dated November 1, 1994, issued in cause number

07-94-0185-CR, this Court dismissed Relator's appeal, noting that no motion for

rehearing would be entertained and that mandate would immediately issue.


      On January 6, 1997, Relator filed a pro se motion requesting that this Court

"dismiss" its 1994 dismissal of his original appeal. That motion was overruled for want

of jurisdiction by opinion dated January 8, 1997, issued in the same appellate cause

number.


      Underlying the documents and pleadings filed by Relator in this proceeding is his

attempt to again challenge his 1994 aggravated assault conviction. At the heart of

those pleadings is Relator's Original Writ of Mandamus, wherein he requests that this

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Court compel the Honorable David L. Gleason to hold a hearing and rule on his pending

"motions and pleadings." Among other arguments, he asserts the evidence in support

of his conviction was legally insufficient, specifically, the evidence to support the

element of serious bodily injury. 3     Relator also contends he was denied effective

assistance of counsel, denied an impartial jury, and was convicted on a defective

indictment. Numerous other documents relating to the appellate record in 1994 have

also been filed. 4 According to Relator's certificates of service, most documents were

filed in the trial court on or about July 6, 2010; however, none of those documents bears

a file stamp date. On September 9, 2010, he filed a Notice of Mandamus against the

Honorable David L. Gleason and a Demand for Performance.


                                          Analysis


       Initially, we note that Relator has failed to comply with mandatory requirements of

Rule 52.3 of the Texas Rules of Appellate Procedure.             Specifically, the numerous

documents filed outlining the matters about which he complains are not certified or

sworn copies as required by Rule 52.3(k)(1)(A). Neither do the motions accompanying

his petition for writ of mandamus bear a file stamp date reflecting how long he has

awaited rulings. A party proceeding pro se is not exempt from complying with rules of

procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

While this reason alone would be a sufficient basis for denying the relief requested, in



3
 Legal insufficiency and other arguments are raised in Relator's "Motion to Reform Judgment and
Sentence," "Motion to Vacate Judgment and Sentence," and "Motion for Judgment of Acquittal."
4
 "Motion to Withdraw Record on Appeal," "Request for Service and Filing of Papers," "Motion to
Supplement Record," and "Motion to Expand the Records."


                                              3
the interest of judicial economy, we deem it appropriate to address the merits of

Relator's requested relief.


                                 Standard of Review


       Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only

to correct a clear abuse of discretion or the violation of a duty imposed by law when

there is no other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d

916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a

relator must (1) show that he has no adequate remedy at law to redress the alleged

harm and (2) the act sought to be compelled is ministerial and does not involve a

discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of

Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007); State ex rel. Rosenthal v. Poe, 98

S.W.3d 194, 198 (Tex.Crim.App. 2003). Relator's request fails in both respects.


                              Adequate Remedy at Law


       First, the right to appeal a criminal conviction is created by statute. See Tex.

Code Crim. Proc. Ann. art. 44.02 (Vernon 2006). See also McKinney v. State, 207

S.W.3d 366, 374 (Tex.Crim.App. 2006).       Direct appeal is the avenue for appealing

sufficiency of the evidence. McKinney, 207 S.W.3d at 374. There is but one direct

appeal; "[t]here is no second bite at the direct appeal apple." King v. State, 125 S.W.3d

517, 520 (Tex.Crim.App. 2003). Appellant exercised his right to a direct appeal in 1994

and voluntarily chose to have his appeal dismissed. Relator had an adequate remedy

                                           4
at law by direct appeal in 1994 to raise the issues he now attempts to present through

this original proceeding. Mandamus will not lie when there was an adequate remedy by

appeal. In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004). Secondly, to the extent

that Relator's complaints were not cognizable in his direct appeal, he has had, and still

has, the right to file a writ of habeas corpus pursuant to article 11.07 of the Texas Code

of Criminal Procedure. 5


                                          Ministerial Act


       When a motion is properly pending before a trial court, the act of considering and

ruling upon the motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157,

158 (Tex. 1992).       The trial court has, however, a reasonable time within which to

perform its ministerial duty.       Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269

(Tex.App.BSan Antonio 1997, orig. proceeding). Whether a reasonable period of time

has lapsed is dependent on the circumstances of each case. Barnes v. State, 832

S.W.2d 424, 426, (Tex.App.BHouston [1st Dist.] 1992, orig. proceeding).


       The party requesting relief must provide a sufficient record to establish his

entitlement to mandamus relief. See Walker, 827 S.W.2d at 837. See also In re Bates,

65 S.W.3d 133, 135 (Tex.App.BAmarillo 2001, orig. proceeding). The record must show

that the motion of which Relator complains was presented to the trial court and that it

refused to act. See generally In re Villareal, 96 S.W.3d 708, 710 n.2 (Tex.App.BAmarillo

2003, orig. proceeding) (filing something with the district clerk does not demonstrate


5
 For example, Relator's claim of ineffective assistance of counsel may be cognizable by writ of habeas
corpus.


                                                  5
that a motion was presented to the trial court). See also In re Chavez, 62 S.W.3d 225,

228 (Tex.AppBAmarillo 2001, orig. proceeding).


       According to Relator's documents, the motions he seeks to have us compel the

trial court to rule on were filed on July 6, 2010, and a demand for performance was filed

on September 9th. Assuming, arguendo, that the motions were brought to the attention

of the trial court, we decline to hold that this period of time constitutes an unreasonable

delay in which to perform a ministerial duty. Therefore, Relator has not shown himself

entitled to mandamus relief.


            Motion to Suspend Writ of Mandamus and Ancillary Motions


       While asking for mandamus relief, at the same time Relator has asked us to

suspend any mandamus relief.        Notwithstanding the obvious incongruity of these

requests, because Relator is not entitled to mandamus relief, he has not, and cannot,

show himself entitled to suspend the granting of that relief. For the same reason, he

has not, and cannot, show himself entitled to any motion relief ancillary to his

mandamus proceeding.


       Accordingly, we deny the request for mandamus relief, deny the request to

suspend this mandamus proceeding, and deny any motion relief ancillary to this

proceeding.


                                                 Patrick A. Pirtle
                                                     Justice




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