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


 IN RE:                                                   §

 DEDRICK MATTHEWS,                                        §       ORIGINAL PROCEEDING

 RELATOR                                                  §

                                       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.


                                      PREREQUISITES TO MANDAMUS
        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 Dist. 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.


                                       AVAILABILITY OF MANDAMUS
        To obtain a writ of mandamus compelling a trial 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.
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 Nov. 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 County, 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. proceeding) (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, she still
has a reasonable time in which to rule once the matter is called to her 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.” Chavez, 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 and 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
pended 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 time

                                                  2
for ruling has passed. See id. at 228–29; see also In re Halley, No. 03-15-00310-CV, 2015 WL
4448831, 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 entitlement to mandamus
relief.


                                                  DISPOSITION
          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)



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                                  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


                                       ORIGINAL PROCEEDING

               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 cause 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,
because 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.
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