Petition for Writ of Mandamus Denied and Memorandum Opinion filed April
28, 2015.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-15-00347-CR



                 IN RE DAMON KENDRICK DOVE, Relator


                           ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                              268th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 12-DCR-61181A

                         MEMORANDUM OPINION

      On April 15, 2015, relator Damon Kendrick Dove filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable
Brady Elliott, presiding judge of the 268th District Court of Fort Bend County, to
grant his motion for discovery and inspection of the State’s file and evidence in his
underlying conviction for sexual assault.
      To be entitled to mandamus relief, a relator must show that he has no
adequate remedy at law to redress his alleged harm, and what he seeks is a
ministerial act, not involving a discretionary or judicial decision. State ex rel.
Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007) (orig. proceeding). Consideration of a motion that is
properly filed and before a court is a ministerial act. State ex rel. Curry v. Gray,
726 S.W.2d 125, 128 (Tex. Crim. App. 1987 (orig. proceeding) (op. on reh’g). A
relator must establish that the trial court (1) had a legal duty to rule on the motion;
(2) was asked to rule on the motion; and (3) failed to do so. In re Keeter, 134
S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding).

      We first address whether the trial court has jurisdiction to rule on relator’s
motion for discovery and inspection. Without jurisdiction, a trial court would have
no legal duty to rule on the motion. The trial court does not have “inherent”
jurisdiction.   State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002)
(plurality op.). Rather, the trial court derives its jurisdiction from either the Texas
Constitution or by legislative enactment. Staley v. State, 420 S.W.3d 785, 795
(Tex. Crim. App. 2013).

      This court affirmed relator’s conviction for sexual assault on November 20,
2014, and the Texas Court of Criminal Appeals refused to grant relator’s petition
for discretionary review on April 1, 2015. See Dove v. State, No. 14-13-00686-
CR, 2014 WL 6602421 (Tex. App.—Houston [14th Dist.] Nov. 20, 2014, pet.
ref’d) (mem. op., not designated for publication). As of this date, the time for
relator to file a motion for rehearing in the Texas Court of Criminal Appeals has
not passed.
                                           2
        Once the appellate record has been filed in the court of appeals, the trial
court no longer has jurisdiction over the case. See Tex. R. App. P. 25.2(g) (“Once
the record has been filed in the appellate court, all further proceedings in the trial
court—except as provided otherwise by law or by these rules—will be suspended
until the trial court receives the appellate-court mandate.”); State v. Moore, 225
S.W.3d 556, 568 (Tex. Crim. App. 2007) (observing that the trial court has
jurisdiction until the record is filed in the appellate court); Green v. State, 906
S.W.2d 937, 939 (Tex. Crim. App. 1995) ([O]nce the trial record has been filed
with the Court of Appeals or this Court, the trial court no longer has jurisdiction to
adjudicate the case.”); Mieneke v. State, 171 S.W.3d 551, 558 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (holding the trial court had jurisdiction to
hold post-conviction hearing because appellate record not been filed with court of
appeals at the time of the hearing).

        The clerk’s record was filed on September 19, 2013, and supplemental
clerk’s records were filed on December 3, 2013, January 12, 2015, and March 30,
2015.     The reporter’s record was filed on September 24, 2013, and the
supplemental reporter’s record was filed on September 30, 2013. Relator has not
cited a statute that would give the trial court jurisdiction over a post-trial request
for discovery and inspection of the State’s file and evidence. Therefore in the
absence of a statute providing the trial court with jurisdiction over relator’s request
that he be provided with certain items in the State’s file and be allowed to inspect




                                           3
exhibits and other physical and tangible objects, the trial court does not have
jurisdiction over relator’s motion.1

       Relator has not established that he is entitled to a writ of mandamus.
Accordingly, we deny relator’s petition for writ of mandamus.


                                                             PER CURIAM

Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




       1
         Relator requests that we compel the trial court to grant his motion. Although a court of
appeals can compel a trial court to rule on a properly pending motion, it cannot tell the trial court
how to rule on the motion. See State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.2d
924, 927 n.3 (Tex. Crim. App. 2001).
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