                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-19-00277-CR

                        IN RE JACKIE RUSSELL KEETER


                                Original Proceeding



                            CONCURRING OPINION


       The problem of trial courts failing to rule on pending motions is an ongoing

problem. For the reasons expressed in my concurring opinion in In Re Rangel, 570 S.W.3d

968, 970-971 (Tex. App.—Waco 2019, orig. proceeding), I continue to believe that we are

wasting resources by not having a better procedure than the existing case authority on

when to deny a petition for writ of mandamus when the petitioner is an inmate trying to

simply get a ruling on a motion. See Appendix A. The prophylactic measure that seems

to work is a request for a response in a form that advises the respondent and the real-

party-in-interest that a ruling on the motion may be submitted in lieu of a response to the

petition. See Appendix B. While the Court’s precedent supports the Court’s ruling in this

case, that precedent has proven to be inefficient and ineffective in practice for actually
getting the pending motion ruled upon. Thus, while I concur in the judgment of the

Court denying the petition, for the reasons stated, I respectfully suggest that there is a

better way to actually get the issue resolved which would be to request a response similar

to the order utilized in Appendix B.



                                         TOM GRAY
                                         Chief Justice

Concurring opinion issued and filed August 28, 2019




In re Keeter                                                                        Page 2
                                     Appendix “A”




                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-19-00014-CR

                             IN RE JERRY RANGEL


                               Original Proceeding



                        CONCURRING OPINION

        Over a year ago, the defendant filed a motion for post-conviction DNA testing

under Chapter 64 of the Texas Code of Criminal Procedure. It has not been ruled upon. It

appears that even after this Court requested a response to the petition for writ of

mandamus, it nevertheless still has not been ruled upon. So now we must address the

merits of a petition for writ of mandamus.

        The State goes to great efforts in its response to show that the motion was

forwarded to the Court of Criminal Appeals. Why? The Court notes that the motion was

promptly forwarded to the Court of Criminal Appeals. Why? Both are good questions



In re Keeter                                                                      Page 3
not addressed by the Court. It was forwarded to the Court of Criminal Appeals

apparently because Rangel put the letter “A” after the cause number on the Chapter 64

DNA testing motion (he contends in his response that the Clerk did it). The cause number

plus the letter “A” is apparently the number assigned to his post-conviction application

for an 11.07 writ. We have been repeatedly told that we should determine what a

document is by the content, not the title, of the document. Here, both the content and the

title confirm that the document is a Chapter 64 post-conviction motion for DNA testing.

        It is unfortunate that the number applied to the motion matched the docket

number for the post-conviction 11.07 application. If nothing had happened to cause this

oversight to come to the attention of the clerk and the State, and if the response to the

petition had been more in the nature of: “We see what happened. We’ll get right on that

Chapter 64 DNA motion so that you do not have to spend your time addressing the

petition for a writ of mandamus,” I would be okay with what we do here, now, in this

proceeding. But, after more than 30 days had passed after the motion was filed, Rangel

moved for findings and conclusions on his DNA motion; doing what he could to bring

attention to the motion he had previously filed. It seems that no one did anything in

response to this motion. No, “Ooops, we forwarded that motion to the Court of Criminal

Appeals as part of the 11.07 writ, which it clearly was not intended to be part

of.” Nothing was done. So finally, Rangel files a petition for a writ of mandamus. Maybe

his better course of action was to write the clerk, and the court coordinator, and the trial

court judge asking about the status and possibly requesting a hearing on his motion. But

a “hearing” or even a request for a hearing would have been premature. It is important


In re Keeter                                                                          Page 4
to notice that the statute requires the trial court and the State to take action, prior to any

hearing, upon receipt of the motion. TEX. CODE CRIM. PROC. ANN. art 64.02 (West 2018).1

        The State, as the real party in interest in this proceeding, and the Court, fault

Rangel for not bringing forth any evidence that his motion for post-conviction DNA

testing was actually brought to the attention of the trial court. Technically that is

correct. But then ask yourself; how exactly is an inmate supposed to do that? It is not

like he can take a copy to the trial court’s office, courtroom, or home to “serve” the trial

court with a copy of the motion. And no matter how many letters the inmate writes, in

all likelihood those letters are going straight to a file in the clerk’s office. Although those

letters may possibly get as far as the court coordinator, they do not necessarily make it to

the trial court, even if addressed for delivery only to the trial court judge. But even then,

how is the inmate supposed to get any evidence that the trial court was actually made

aware of the motion? This Court requested a response from the parties. The trial court

is a party, the respondent. We could infer from that procedure the trial court is now

aware of the motion. Maybe Rangel can now use this proceeding and that inference to

compel a ruling if one is not timely received after this court’s opinion and judgment issue.




1Article 64.02(a) provides:
         (a) On receipt of the motion, the convicting court shall:
                  (1) provide the attorney representing the state with a copy of the motion; and
                  (2) require the attorney representing the state to take one of the following actions
                  in response to the motion not later than the 60th day after the date the motion is
                  served on the attorney representing the state:
                          (A) deliver the evidence to the court, along with a description of
                          the condition of the evidence; or
                          (B) explain in writing to the court why the state cannot deliver
                          the evidence to the court.


In re Keeter                                                                                             Page 5
         Since we will have ruled on the mandamus and as part of that we will send a copy

of the opinion and judgment to the trial court, will that be “evidence” that the trial court

has “received” the motion? Not really. It is only evidence that he might be aware of it.

         At some point, the sworn allegation that the movant has filed the motion and

requested a ruling should be enough. I am disappointed that there is no procedure in the

statute or the rules, or even within the county’s (district clerk’s) filing system, to cause

the filing of motions pursuant to Chapter 64 to trigger the action by the trial court and

the State that the statute requires. Id. 64.02(a). But the trial court’s requirement to start

the process by providing a copy to the “attorney representing the state” and the

requirement for that attorney to take one of several alternative actions, begins only when

“the convicting court” is in “receipt” of the motion. Id. So we are back to where we

started. How can the inmate prove when the convicting trial court received the motion?

         It would avoid the waste of a lot of resources if the trial court would simply take

the required action on the motion. Now that it is over a year after the motion was filed,

and the State and, we must infer, the trial court are aware of the filing of the motion, it is

not unreasonable to expect action as required by the statute forthwith, including, if

appropriate, the appointment of counsel? A ruling, any ruling, would avoid the

interminable delay and unnecessary consumption of judicial resources caused by the

pursuit of a mandamus. And a mandamus seems to be an extraordinarily inefficient way

to create the evidence necessary for a successive mandamus in which the inmate can

show that the trial court has been made aware of the Chapter 64 motion that has been

filed.


In re Keeter                                                                            Page 6
        While I think the better course of action would be to conditionally issue the writ

to compel the trial court’s compliance with the statute regarding the procedure for post-

conviction DNA testing pursuant to Texas Code of Criminal Procedure Chapter 64, I

concur in the Court’s judgment but not its opinion.


                                          TOM GRAY
                                          Chief Justice


Concurring opinion delivered and filed March 13, 2019




In re Keeter                                                                        Page 7
                                          Appendix “B”




                                    IN THE
                            TENTH COURT OF APPEALS



                                    No. 10-19-00266-CR

                         IN RE CHARLES ROBERT BLAKE


                                    Original Proceeding



                                           ORDER

        The Clerk of this Court received a document from relator, Charles Robert Blake,

on August 5, 2019. We have determined the document to be a petition for writ of

mandamus which the Clerk filed on August 12, 2019. The petition was not served as

required the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.5. However, we

use Rule 2 to dispense with the service requirements and proceed to the issuance of this

order. See TEX. R. APP. P. 2.2




2
  Because the State may access Jones’ petition and attachment through the Court’s website, we do not
include a copy of those documents with this order.


In re Keeter                                                                                 Page 8
        In an effort to expedite the ultimate determination of the issue presented in the

enclosed mandamus proceedings, the Court requests a response to the mandamus. Any

response, from the respondent or the real party in interest, must be filed within 7 days

from the date of this notice.

        The attention of the parties in this matter is brought to the fact that a ruling on the

pending motion would make this proceeding moot. Thus, if a ruling on the motion has

been or is made before the due date for the response, a copy of the ruling may be provided

to this Court in lieu of a response.


                                            PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Response requested
Order issued and filed August 16, 2019
[RWR]




In re Keeter                                                                             Page 9
