

NO. 12-11-00113-CR
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN RE:                                                            §                      
 
AARON LAMON MUSE,                             §                      ORIGINAL
PROCEEDING
 
RELATOR                                                     §                      



MEMORANDUM
OPINION
            Relator
Aaron Lamon Muse complains in this original mandamus proceeding that the trial
court has failed to rule on Relator’s motion for new trial.  Relator filed the
motion on February 8, 2011, and seeks to set aside his 2009 conviction for
aggravated robbery.  He asserts that the trial court has a legal duty to rule
on the motion for new trial and urges that mandamus is appropriate to require
the trial court to perform its duty.  We deny the petition.
            To
demonstrate entitlement to a writ of mandamus in a criminal case, a relator
must establish that (1) the trial court failed to perform a duty that is purely
ministerial under the facts and the law, and that (2) the relator has no other
adequate legal remedy.  State ex rel. Hill v. Fifth Court of Appeals,
34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).  
            A
trial court has no duty to rule on a motion for new trial.  See Tex. R. App. P. 21.8(c) (motion for new
trial not ruled on by written order within seventy-five days after imposing or
suspending sentence in open court deemed denied at expiration of seventy-five
period).  Moreover, a defendant in a criminal case must file a motion for new
trial not later than thirty days after the date the trial court imposes or
suspends sentence in open court.  Tex.
R. App. P. 21.4(a).  Here, Relator’s sentence was imposed in open court
on October 30, 2009, and his motion was filed approximately sixteen months
later on February 8, 2011.  This is well outside the thirty day time period for
filing a motion for new trial.  See Tex.
R. App. P. 21.4(a).  Because Relator’s motion was not timely filed, the
trial court has no authority to rule on the motion.  Therefore, even if a trial
court generally has a duty to rule on a motion for new trial, the respondent
trial court has  no plenary power to do so under the facts presented here.
            Relator
has not shown that the trial court failed to perform a ministerial duty. 
Consequently, he cannot show that he is entitled to mandamus relief.  Relator’s
petition for writ of mandamus is denied.
 
 
                                                                                    James
T. Worthen
                                                                                         
 Chief Justice
 
 
 
 
 
 
Opinion delivered May 11, 2011.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(DO
NOT PUBLISH)

