                                 NUMBER 13-13-00391-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

                                    IN RE DARRIN SCOTT


                           On Petition for Writ of Mandamus.


                             MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Longoria
                 Memorandum Opinion by Justice Longoria1

        Relator, Darrin Scott, proceeding pro se, filed a petition for writ of mandamus on

July 24, 2013. Through this original proceeding, relator seeks to compel the Honorable

Randy M. Clapp of the 329th District Court of Wharton County, Texas to consider and

rule on relator’s motion for nunc pro tunc judgment regarding relator’s 2007 conviction




        1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so. When granting relief, the court must hand down an opinion as in any other case.”);
see id. R. 47.4 (distinguishing opinions and memorandum opinions).


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for the felony offense of delivery of a controlled substance. We conditionally grant the

petition for writ of mandamus as stated herein.

                                 I. STANDARD OF REVIEW

      To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that 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). If

relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

      A remedy at law, though it technically exists, "may nevertheless be so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645,

648–49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled

must be a ministerial act that does not involve a discretionary or judicial decision. State

ex rel. Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the

relator can show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d

at 122. A clear right to relief is shown when the facts and circumstances dictate but one

rational decision "under unequivocal, well-settled (i.e., from extant statutory,

constitutional, or case law sources), and clearly controlling legal principles." Bowen v.

Carnes, 343 S.W.3d 805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks,

391 S.W.3d at 122.




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      Consideration of a request or 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); see White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App.

1982). There is no adequate remedy at law for a trial court’s failure to rule because

“[f]undamental requirements of due process mandate an opportunity to be heard.” See

In re Christensen, 39 S.W.3d 250, 251 (Tex. App.—Amarillo 2000, orig. proceeding)

(citing Creel v. Dist. Atty. for Medina Cnty., 818 S.W.2d 45, 46 (Tex. 1991)). Thus, in

proper cases, mandamus may issue to compel the trial court to act.            See In re

Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).

      The Texas Court of Criminal Appeals has held that where the trial court fails to

respond to a nunc pro tunc motion, the appropriate remedy is to seek relief in the

appellate courts by way of a petition for a writ of mandamus. See Ex parte Ybarra, 149

S.W.3d 147, 148 (Tex. Crim. App. 2004) (per curiam) (regarding the clerical correction

by nunc pro tunc motion of pre-sentence jail time credit).

                                  II. BURDEN OF PROOF

      It is the relator’s burden to properly request and show entitlement to mandamus

relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re

Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see

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

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks.”). In addition to other requirements, the

relator must include a statement of facts supported by citations to “competent evidence

included in the appendix or record,” and must also provide “a clear and concise



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argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must also file an

appendix and record sufficient to support the claim for mandamus relief. See id. R.

52.3(k) (specifying the required contents for the appendix); id. R. 52.7(a) (specifying the

required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney,

254 S.W.3d at 661.

                                       III. ANALYSIS

       By one issue, relator contends that “mandamus should issue ordering the trial

court to hear the [r]elator’s nunc pro tunc motion and order to correct the judgment to

reflect the 15 year sentence in the written record to show the true judgment.” Relator

contends that his sentence should run concurrently rather than consecutively with the

sentence for a different offense. This is the second petition for writ of mandamus filed

by relator raising this same issue. See In re Scott, No. 13-13-00224-CR, 2013 WL

1896317, at *1 (Tex. App.—Corpus Christi Apr. 30, 2013, orig. proceeding) (per curiam)

(mem. op., not designated for publication). This Court denied relator’s first petition for

writ of mandamus on grounds that relator had not met his burden to obtain mandamus

relief. See id. at *3.

       In the instant case, relator’s petition for writ of mandamus was filed in substantial

compliance with the Texas Rules of Appellate Procedure and contains sections for the

identity of parties, the table of contents, an index of authorities, a statement of facts, a

statement of jurisdiction, the issues presented, argument and authorities, and prayer.

See generally TEX. R. APP. P. 52. Although the certification does not follow the specific




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format required by the appellate rules, relator has verified the contents of the petition as

true and correct.   See id. R. 52.3(j). The petition includes argument supported by

appropriate citations to authority and to documents included in the appendix. See id. R.

52.3(h).     The appendix to the petition includes several items of supporting

documentation, including:

       (1)    An “Inmate Correspondence Reply” dated February 7, 2013 from
              the District Clerk of Wharton County to relator stating:

              Received your request for Nunc Pro Tunc Motion & Order on
              December 5, 2012. I have sent your request to Judge Clapp,
              however it was returned–UNSIGNED–NO ACTION TAKEN. I am
              enclosing a file stamped copy of your motion.

              The copy of the Nunc Pro Tunc Motion and Order attached is not
              file-stamped; however, the certificate of service reflects a mailing
              date of December 3, 2012.

       (2)    An “Inmate Correspondence Reply” dated March 6, 2013 from the
              District Clerk of Wharton County to relator stating: “Received your
              nunc pro tunc motion & order & sent it to the Judge for
              consideration. It was returned unsigned.

       (3)    A March 1, 2013 file-stamped letter from relator to the District Clerk
              requesting that the District Clerk file relator’s nunc pro tunc motion
              and order and present the nunc pro tunc motion and order to the
              judge. This letter is annotated in handwriting: “Copy given to
              District Attorney & original sent to Judge for consideration.” The
              handwritten note is not signed.

       This Court requested and received a response to the petition for writ of

mandamus from the State of Texas, acting by and through the District Attorney of

Wharton County, Texas. The State’s response states, in pertinent part:

              The relief which relator seeks is specifically prohibited by controlling
       law. As the judgment in this case shows, relator was convicted of a drug
       offense by a jury who also found that the offense was committed in a drug
       free zone. . . . The trial court had no discretion to run relator’s sentence
       concurrently because [section] 481.134(h) of the Health Code prohibits
       such a sentence.

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               Therefore, relator has failed to meet his burden of showing his
       entitlement to mandamus relief. A nunc pro tunc judgment is only
       appropriate to correct clerical errors in a judgment, and there was no
       clerical error in this case.

See TEX. HEALTH & SAFETY CODE ANN. § 481.134(h) (West Supp. 2011) (pertaining to

offenses committed in drug-free zones and stating that “[p]unishment that is increased

for a conviction for an offense listed under this section may not run concurrently with

punishment for a conviction under any other criminal statute.”). The State’s response to

the petition for writ of mandamus focuses on the merits of relator’s motion for nunc pro

tunc judgment rather than the trial court’s exercise of its ministerial duty in ruling on the

motion itself. However, the substantive merit of relator’s motion is not before us in this

original proceeding. See In re Shredder Co., 225 S.W.3d 676, 680 (Tex. App.—El Paso

2006, orig. proceeding) (“Although we have jurisdiction to direct the trial court to

exercise its discretion in some manner, under no circumstances may we tell the trial

court what its decision should be.”); In re Ramirez, 994 S.W .2d 682, 684 (Tex. App.—

San Antonio 1998, orig. proceeding) (“However, while we have jurisdiction to direct the

trial court to proceed to judgment, we may not tell the court what judgment it should

enter.”).

       To obtain mandamus relief for the trial court’s refusal to rule on a motion, a

relator must establish: (1) the motion was properly filed and has been pending for a

reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court

refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig.

proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.

proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig.



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proceeding). The relator must show that the trial court received, was aware of, and was

asked to rule on the motion. In re Blakeney, 254 S.W.3d at 661; In re Villarreal, 96

S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding).

       In the instant case, relator has furnished an appendix sufficient to support his

claim for relief insofar as relator has demonstrated that his pleadings were presented to

the respondent and the respondent refused to rule on them. See In re Dimas, 88

S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding); In re Chavez, 62

S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Based on this record,

relator’s motion was properly filed and was brought to the trial court’s attention with a

request for a ruling.   Therefore, the only remaining issue before us is whether the

motion has been pending for an unreasonable amount of time. In examining this issue,

we note that the trial court has broad discretion in managing its docket, but that

discretion is not unlimited. See In re Allied Chem. Corp., 227 S.W.3d 652, 654 (Tex.

2007) (orig. proceeding); Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982).

       The trial court has a reasonable time within which to perform its ministerial duty.

See In re Blakeney, 254 S.W.3d at 661. Whether a reasonable time for the trial court to

act has lapsed is dependent upon the circumstances of each case. See id. at 662; In re

Chavez, 62 S.W.3d at 228. The test for determining what time period is reasonable is

not subject to exact formulation, and no “bright line” separates a reasonable time period

from an unreasonable one. In re Blakeney, 254 S.W.3d at 661; In re Keeter, 134

S.W.3d at 253; In re Chavez, 62 S.W.3d at 228. We examine a “myriad” of criteria

including the trial court’s actual knowledge of the motion, its overt refusal to act, the

state of the court’s docket, and the existence of other judicial and administrative matters



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which must be addressed first. In re Blakeney, 254 S.W.3d at 661; see Ex parte Bates,

65 S.W.3d 133, 135 (Tex. App.—Amarillo 2001, orig. proceeding); In re Chavez, 62

S.W.3d at 228–29. Periods of eighteen months, thirteen months, and four months have

been held to be too long for a trial court not to rule. See In re Kleven, 100 S.W.3d at

644–45 (eighteen months and four months); In re Ramirez, 994 S.W.2d 682, 684 (Tex.

App.—San Antonio 1998, orig. proceeding) (eighteen months); Kissam v. Williamson,

545 S.W.2d 265, 266–67 (Tex. App.—Tyler 1976, orig. proceeding) (per curiam)

(thirteen months); see also In re Armstrong, No. 06-11-00100-CV, 2011 WL 5561705, at

*1 (Tex. App.—Texarkana Nov. 16, 2011, orig. proceeding) (mem. op.) (thirteen

months).

      In this case, relator’s motion for nunc pro tunc judgment has been pending since

December 5, 2012, a period of more than nine months. We conclude that relator is

entitled to have a ruling on his motion under these circumstances. See In re Blakeney,

254 S.W.3d at 661; In re Chavez, 62 S.W.3d at 228.

                                     III. CONCLUSION

      The Court, having examined and fully considered the petition for writ of

mandamus, the response thereto, and the applicable law, is of the opinion that the

petition should be conditionally granted. In so holding, however, we do not reach the

merits of relator’s pleadings or direct the trial court regarding how to rule on them. See

In re Blakeney, 254 S.W.3d at 661; O’Donniley v. Golden, 860 S.W.2d 267, 269 (Tex.

App.—Tyler 1993, orig. proceeding).




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We conditionally grant the petition for writ of mandamus. The writ will issue only if the

trial court fails to take appropriate action in accordance with this opinion.


                                                  ____/s/ Nora L. Longoria___
                                                  NORA L. LONGORIA
                                                  Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed this the
19th day of September, 2013.




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