                                       NO. 12-19-00413-CR
                              IN THE COURT OF APPEALS
                 TWELFTH COURT OF APPEALS DISTRICT
                                          TYLER, TEXAS


 IN RE:                                                   §

 BRIAN ALAN HAYS,                                         §       ORIGINAL PROCEEDING

 RELATOR                                                  §

                                       MEMORANDUM OPINION
                                           PER CURIAM
        Brian Alan Hays, acting pro se, filed this original proceeding to seek an order compelling
Respondent to rule on his motion for judgment nunc pro tunc and withdraw a cumulation order
that Relator contends is invalid. 1


                                                BACKGROUND
        In trial court cause number 4736, Relator was convicted of theft on September 21, 2007,
and sentenced to eight years in prison. In 2010, Relator was released on mandatory supervision.
On August 23, 2011, he was convicted in trial court cause number 5168 of evading arrest or
detention and sentenced to twenty years in prison. The record contains a cumulation order that
any sentence in cause number 5168 be served consecutively with the term assessed in cause
number 4736, and that the sentence in cause number 5168 begin when the sentence in cause
number 4736 ceases to operate. Relator appealed his conviction in cause number 5168, but did
not challenge the cumulation order. See Hays v. State, No. 12-11-00313-CR, 2013 WL 2286044
(Tex. App.—Tyler May 22, 2013, no pet.) (mem. op., not designated for publication). This Court
affirmed his conviction. See id. In September 2011, the Texas Board of Pardons and Paroles
revoked Relator’s mandatory supervision in cause number 4736.


        1
          Respondent is the Honorable Eddie Northcutt, Judge of the 8th District Court in Rains County, Texas. The
State of Texas is the Real Party in Interest.
       On August 28, 2019, Relator filed a motion for judgment nunc pro tunc, in which he
requested that Respondent delete the cumulation order. In response, the State argued that a non-
clerical change to the cumulation order could not be made via a judgment nunc pro tunc. The
record does not indicate whether Respondent ruled on the motion. This proceeding followed.


                                  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
       Relator contends that his mandatory supervision in cause number 4736 was not revoked
before entry of the cumulation order; thus, there was no sentence to cumulate with cause number
5168, making the cumulation order void. Accordingly, he asks this Court to direct Respondent to
rule on his motion for judgment nunc pro tunc and delete the cumulation order.
       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–
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.
       The record before us does not indicate that Relator attempted to bring his motion to
Respondent’s attention. Although Relator’s motion is file marked, “[s]howing that a motion was
filed with the court clerk does not constitute proof that the motion was brought to the trial court’s
attention or presented to the trial court with a request for a ruling.” In re Blakeney, 254 S.W.3d
659, 662 (Tex. App.—Texarkana 2008, orig. proceeding). Nor does the record contain any

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evidence, such as a docket sheet, demonstrating that the trial court has not ruled on the 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, he has a
reasonable time in which to rule once the matter is called to his 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 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 31, 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 31, 2019

                                        NO. 12-19-00413-CR



                                       BRIAN ALAN HAYS,
                                            Relator
                                              V.

                                  HON. EDDIE NORTHCUTT,
                                         Respondent


                                       ORIGINAL PROCEEDING

               ON THIS DAY came to be heard the petition for writ of mandamus filed by Brian
Alan Hays; who is the relator in appellate cause number 12-19-00413-CR and was the defendant
in trial court cause number 5168, in the 8th Judicial District Court of Rains County, Texas. Said
petition for writ of mandamus having been filed herein on December 16, 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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