Petition for Writ of Mandamus Denied and Memorandum Opinion filed
January 17, 2013.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-12-01162-CR
                               NO. 14-12-01163-CR
                               NO. 14-12-01164-CR



                     ROBERT RANDALL LONG, Relator


                         ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                        From the 177th District Court
                            Harris County, Texas
             Trial Court Cause Nos. 1216882, 1235282, & 1273161

                       MEMORANDUM OPINION
      On December 28, 2012, relator, Robert Randall Long, filed a petition for
writ of mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable Ryan
Patrick, presiding judge of the 177th District Court of Harris County to rule on
relator’s pro se motions and applications for subpoenas duces tecum.
        According to his petition, relator has been charged with three theft offenses,
two of which are for “theft-aggregate” and the third offense is theft of between
$100,000 and $200,000.1 Relator complains that he has been confined in the Harris
County Jail since October 1, 2009, and the trial court has not ruled on his pro se
motions, including his speedy trial motion.2 Relator asks this court to compel the
trial court to rule on the following:

        1. Defendant’s Motion to Order Court Reporter to Transcribe
        Proceedings;

        2. Defendant’s Amended Motion to Dismiss Court-Appointed Back-
        up Attorney;
        3. Defendant’s Amended Motion to Appoint an Interpreter and his
        Second Amended Application for Subpoena Duces Tecum “for said
        motion”;3
        4. Defendant’s Fourth Amended Motion for a Speedy Trial or
        Dismissal and his Fifth Amended Application for Subpoena duces
        tecum “for said motion”; and

        5. Defendant’s Motion to Compel the District Attorney to produce and
        return to him a black soft-sided computer case and the application for
        subpoena duces tecum “for said motion.”

        To be entitled to mandamus relief in a criminal case, a relator must show
that he has no adequate remedy at law to redress his alleged harm, and that what he

1
  Section 31.09 of the Texas Penal Code provides that when amounts are obtained pursuant to
“one scheme or continuing course of conduct” the conduct may be considered as one offense and
the amounts aggregated in determining the grade of the offense. Tex. Penal Code § 31.09.
2
 The Respondent was not appointed judge of the 177th District Court until August 21, 2012. “Mandamus
will not issue against a new judge for what a former one did.” In re Baylor Med. Ctr. at Garland, 280
S.W.3d 227, 228 (Tex. 2008). Accordingly, we do not address the actions of the previous judge.
3
  It is unclear from this petition what relator means by requesting the issuance of subpoenas duces tecum
in connection with these motions. Article 24.02 of the Texas Code of Criminal Procedure contains limited
authority for the issuance of a subpoena duces tecum to direct a particular witness to produce writings, or
other things in his possession, in connection with his testimony at trial. See Tex. Code Crim. Proc. art.
24.02.


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seeks to compel 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 the court is a
ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.
1987) (orig. proceeding). A relator must establish 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);
In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig.
proceeding) (relator must show that trial court received, was aware of, and was
asked to rule on motion).

      Relator has not provided this court with copies of the motions on which he
seeks a ruling. He has not established that the motions were properly filed and that
the trial court was asked to rule on them but failed to do so. He also has not
provided records from the hearings to which he refers in his petition. It is relator’s
burden to provide this court with a record sufficient to establish his right to relief.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.3(k),
52.7(a). Relator asserts that he is indigent and unable to obtain copies, but he has
not filed an affidavit of indigence or other support for this claim.

      A trial judge has a reasonable time to perform the ministerial duty of
considering and ruling on a motion properly filed and before the judge. In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).
According to relator’s petition, a hearing was set September 19, 2012, but it was
reset to October 8, 2012, and reset again to October 9, 2012. At the hearing, the
respondent purportedly denied relator’s demand for a ruling on his speedy trial
motion. Relator states that the judge then set a hearing for pre-trial motions for

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February 28, 2013, and set the cases for trial on May 6, 2013. It appears therefore
that the respondent has not unreasonably delayed after assuming the bench in
August of 2012.

      In addition, relator has an adequate remedy at law with respect to his speedy
trial motion. See Smith v. Gohmert, 962 S.W.2d 590, 592-93 (Tex. Crim. App.
1998) (denying mandamus relief and holding that relator had an adequate remedy
at law on his speedy trial claims).

      Accordingly, we deny relator’s petition for writ of mandamus.



                                      PER CURIAM



Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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