                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00225-CV


                          IN RE TOM CASTILLEJA, RELATOR


                                    Original Proceeding

                                     June 18, 2014

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Relator, Tom Castilleja, has filed his petition for writ of mandamus in which he

asks this Court to issue a writ of mandamus directing Respondent, the Honorable John

J. McClendon III, presiding judge of the 137th District Court, to rule on Relator’s motions

for post-conviction DNA testing and for discovery. We will deny Relator’s petition.


                                Availability of Mandamus


      To be entitled to mandamus relief, a relator must show that he or she has no

adequate remedy at law to redress the alleged harm and that he or she seeks to compel

a ministerial act, one 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). Generally, a relator bears the burden to properly request and

show entitlement to mandamus relief. See 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). Additionally, a relator must establish the following: (1)

a legal duty to perform, (2) a demand for performance, and (3) a failure or refusal to act.

In re Guetersloh, 326 S.W.3d 737, 740 (Tex. App.—Amarillo 2010, orig. proceeding)

(per curiam); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.

proceeding) (citing O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992)

(orig. proceeding)).


       To that end, a relator must provide the reviewing court with a record sufficient to

establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Davidson,

153 S.W.3d at 491; see also TEX. R. APP. P. 52.3(k) (specifying required contents for

appendix), 52.7(a)(1) (providing that relator must file with petition “a certified or sworn

copy of every document that is material to the relator’s claim for relief and that was filed

in any underlying proceeding”). “Even a pro se applicant for a writ of mandamus must

show himself entitled to the extraordinary relief he seeks.” Barnes v. State, 832 S.W.2d

424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam).




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                                               Analysis


        Relator maintains that Respondent has failed to consider and rule on his motions

that have been pending since sometime in February 2014.1                       Relator also correctly

points out that a trial court has a ministerial duty to rule on properly filed motions within

a reasonable time. See O’Donniley v. Golden, 860 S.W.2d 267, 269–70 (Tex. App.—

Tyler 1993, orig. proceeding) (per curiam). However, from the appendix with which we

have been provided, it is not clear when or whether these motions were ever received

or properly filed. In fact, the copies provided to us bear no file stamp at all from the

district clerk’s office, and no other document in the appendix confirms that the motions

were received or filed. See In re Mendez, No. 07-13-00201-CV, 2013 Tex. App. LEXIS

9329, at *3 (Tex. App.—Amarillo July 29, 2013, orig. proceeding) (per curiam) (citing In

re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding)); In re

Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (per

curiam). We see that Relator purportedly sent letters to the district clerk’s office and the

administration office in an apparent effort to check on the status of these motions.



        1
          We observe that, while Relator complains that Respondent has not ruled on the motions at
issue, Relator has also mentioned in a brief, one-sentence declaration that Respondent, the Honorable
John J. McClendon III, the current presiding judge of the 137th District Court, should recuse himself from
the matter because Respondent represented Relator in 2004 in trial court cause number 2004-407,067
and on direct appeal of Relator’s resulting murder conviction in appellate cause number 07-06-00062-CR.
Our records confirm that such is the case. Relator does not develop this issue in any way to suggest that
he presents the matter for this Court’s consideration in the instant petition.

         However, we note that the existence of such facts alone demonstrates that Respondent is
disqualified from acting as the presiding judge over such matters raised in connection with Relator’s
original conviction when Respondent was Relator’s counsel in those proceedings. See TEX. CONST. art.
V, § 11 (“No judge shall sit in any case . . . when the judge shall have been counsel in the case.”); TEX.
CODE CRIM. PROC. ANN. art. 30.01 (West 2006) (“No judge or justice of the peace shall sit in any case
where he . . . has been of counsel for the State or the accused . . . .”). Therefore, Relator would be
prohibited by law from considering and acting on the motions as Relator now requests that he be
compelled to do.

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However, those letters suffer the same infirmity: no indicia that they were received or

filed by the respective addressees.


       Further, even if we were to presume that the motions were filed, nothing in the

record before us indicates that the motions have been presented to Respondent. See

In re Villarreal, 96 S.W.3d at 710 (noting that a relator must demonstrate that trial court

was aware of the document at issue); In re Chavez, 62 S.W.3d at 228 (observing that

filing a document with the district clerk does not mean the trial court knows of the

document and that clerk’s knowledge is not imputed to the trial court). We cannot fault

Respondent for failing to act when he is or was unaware of the need to act. See In re

Johnson, No. 07-13-00342-CV, 2013 Tex. App. LEXIS 13334, at *3 (Tex. App.—

Amarillo Oct. 28, 2013, orig. proceeding) (per curiam); In re Villarreal, 96 S.W.3d at 710.


       Relator has failed to provide this Court with a file-marked copy of his motions or

any other records to demonstrate that his motions were properly filed and were

presented to the trial court before which the motions have remained pending for an

unreasonable length of time. Consequently, we cannot determine whether his motions

were properly filed or, even assuming that they were, the date on which they were

received by either the district clerk’s office or Respondent. We, then, are left without the

means to determine whether Relator’s motions have been pending for an unreasonable

amount of time. See In re Chavez, 62 S.W.3d at 228 (observing that trial court has a

reasonable time within which to perform ministerial duty of considering and acting upon

properly filed motions).    In the absence of an appendix containing the required

documents, Relator has failed to sufficiently show that Respondent had a legal duty to



                                             4
perform, that Relator made an adequate demand for performance, and that Respondent

has failed or refused to act. See id.


       By failing to provide the necessary documents to support his allegations, Relator

has not only failed to comply with the rules of procedure governing mandamus but has

also failed to provide us a record sufficient to enable us to assess his contentions. See

In re Villarreal, 96 S.W.3d at 710. That being so, Relator has failed to present this Court

with a record sufficient to demonstrate that he is entitled to the extraordinary relief

requested. See Walker, 827 S.W.2d at 837; In re Davidson, 153 S.W.3d at 491.


                                        Conclusion


       Accordingly, we deny Relator’s petition for writ of mandamus. See TEX. R. APP.

P. 52.8(a); see also In re Molina, 94 S.W.3d at 886.




                                                 Per Curiam




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