DENY; and Opinion Filed May 22, 2019.




                                                 In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                           No. 05-19-00355-CV

                               IN RE QUINCY BLAKELY, Relator

                  Original Proceeding from the 194th Judicial District Court
                                    Dallas County, Texas
                              Trial Court Cause No. F15-18020

                               MEMORANDUM OPINION
                            Before Justices Bridges, Osborne, and Carlyle
                                     Opinion by Justice Osborne
        Relator Quincy Blakely has been charged with the offense of assault of a public servant.

The case proceeded to trial on May 14, 2018 and ended in a mistrial. The case was set for re-trial

on April 29, 2019. In this original proceeding, relator complains that the trial court has not set his

December 10, 2018 motion to suppress for hearing and has not ruled on his January 30, 2019

motion for discovery and inspection.

        To establish a right to mandamus relief in a criminal case, the relator must show that he

has no adequate remedy at law and what he seeks to compel is a ministerial act. In re State ex rel.

Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding); Simon v. Levario, 306

S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding); In re Flores, 05–16–00210–CV, 2016

WL 890969, at *1 (Tex. App.–Dallas Mar. 9, 2016, orig. proceeding) (citing In re Allen, 462

S.W.3d 47, 49 (Tex. Crim. App. 2015) (orig. proceeding)). Under this record, we conclude relator

is not entitled to the relief requested.
         First, relator has not shown the trial court has failed to perform a ministerial act. A trial

court may resolve a motion to suppress in a pretrial hearing, but it is not required to do so. Black

v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); see Russell v. State, 904 S.W.2d 191, 200

(Tex. App.—Amarillo 1995, pet. ref’d). Rather, the trial court has discretion to choose to “carry

the motion over for trial” or even choose to begin a suppression hearing pretrial, and then reopen

the matter during trial. Black, 362 S.W.3d at 633, 634; see Russell, 904 S.W.2d at 200. The trial

court, therefore, does not have a ministerial duty to hear relator’s motion to suppress before trial.

Similarly, a trial court’s acts involving discovery under article 39.14 of the Texas Code of Criminal

Procedure are generally discretionary and not subject to a writ of mandamus. Dickens v. Court of

Appeals for the Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 552 (Tex. Crim. App.

1987).

         Second, the trial court has not been given a reasonable time to rule on the discovery motion

or has not refused to rule. A trial court has a ministerial duty to rule upon a properly filed and

timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed and timely

presented, a motion must be presented to a trial court at a time when the court has authority to act

on the motion. See In re Hogg–Bey, No. 05-15-01421-CV, 2015 WL 9591997, at *1–2 (Tex.

App.—Dallas Dec. 30, 2015, orig. proceeding) (mem. op.). No litigant is entitled to a hearing at

whatever time he may choose, however. In re Chavez, 62 S.W.3d 225, 229 (Tex. App.—Amarillo

2001, orig. proceeding). A trial court has a reasonable time within which to consider a motion and

to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding);

In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding).                   The

circumstances of the case dictate whether the trial court has ruled within a reasonable time. Barnes

v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). To

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establish entitlement to mandamus relief for a trial court’s refusal to act, the relator must establish

that the trial court had a legal duty to perform a ministerial act, relator made demand for

performance, and the court refused to perform. O’Connor v. First Court of Appeals, 837 S.W.2d

94, 97 (Tex.1992); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.

proceeding). Here, the trial court has not refused to rule, has not refused to set the motion for

hearing, has not failed to rule within a reasonable time, and has discretion regarding when and how

to rule on the motion. Relator has, therefore, not established a right to mandamus relief regarding

the discovery motion.

       Based on the record before us, we conclude relator has not shown he is entitled to the relief

requested. Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P.

52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief

sought).




                                                    /Leslie Osborne/
                                                    LESLIE OSBORNE
                                                    JUSTICE


190355F.P05




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