                                    NO. 12-11-00058-CR

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

IN RE:                                        §

CLEVELAND WADE THOMPSON,                      §              ORIGINAL PROCEEDING

RELATOR                                       §

                                    MEMORANDUM OPINION
                                        PER CURIAM
       Relator Cleveland Wade Thompson has filed a petition for writ of mandamus
―compelling the [trial court] to consider and rule on Relator’s motions without prejudice and
issue an order compelling a hearing on Relator’s illegal sentence . . . in the interest of justice.‖
We deny the petition in part and dismiss it in part.


                                          BACKGROUND
       After entering an open plea of guilty, Relator was convicted of aggravated assault on a
public servant. The trial court entered a judgment of conviction on November 15, 2002. Relator
did not appeal his conviction. In the years since Relator’s conviction, however, he has filed
several applications for writ of habeas corpus, all of which have been dismissed by the court of
criminal appeals. His most recent application was dismissed on December 6, 2010, and Relator
has attached a copy of that application to his mandamus petition. Attached as exhibits to the
copy of that habeas application are copies of various documents, including ―Appellant’s Notice
of Appeal In Habeas Corpus‖ and ―Defendant’s Request For Court to Appoint Counsel.‖ The
relief Relator requests in this proceeding concerns these attached motions and the claim Relator
raised in the habeas application.
                                       AVAILABILITY OF MANDAMUS
        To obtain mandamus relief in a criminal case, a relator must demonstrate that he does not
have an adequate remedy at law to redress his alleged harm and that 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 aspect of this two part test, mandamus relief
should be denied. Id.
Failure to Rule on Motions
        Relator first complains that the trial court has failed to rule within a reasonable time on
his ―Appellant’s Notice of Appeal In Habeas Corpus‖ and ―Defendant’s Request For Court to
Appoint Counsel.‖ Both of these documents include a request for relief, and we therefore
construe them as motions.
        A trial court is required to consider and rule on a motion within a reasonable time.
Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding);
Kissam v. Williamson, 545 S.W.2d 265, 266–67 (Tex. Civ. App.—Tyler 1976, orig.
proceeding). In other words, considering a motion that is properly filed and pending before a
trial court is a ministerial act, and mandamus may issue to compel the trial court to act. See State
ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding). But that
duty does not arise until the motion has been brought to the trial court’s attention. See In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).
        The record in this proceeding does not show that the motions Relator addresses have been
filed in the trial court. Moreover, the Smith County District Clerk has no record of these motions
being filed. Therefore, Relator has not shown that the trial court has a duty to rule on the
motions. Because the trial court has no duty to rule on the motions, Relator has not shown that
he is entitled to mandamus relief relating to the motions.1
Failure to Conduct Hearing
        Relator also requests that we direct the trial court to hold a hearing on his ―illegal
sentence.‖ According to Relator, his sentence is illegal because the State introduced evidence


        1
             As an aside, we note that ―Appellant’s Notice of Appeal In Habeas Corpus‖ appears to be a request that
the court of criminal appeals permit him to file a subsequent habeas application challenging the same conviction.
See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4 (Vernon Supp. 2010). Accordingly, even if this motion had been
filed, the trial court would not be the proper court to rule on it.

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that was sufficient to support only a lesser included offense and not the offense for which he was
convicted. Texas Code of Criminal Procedure article 11.07 governs the procedure for obtaining
postconviction relief from a final felony conviction. See TEX. CODE CRIM. PROC. ANN. art. 11.07
(Vernon Supp. 2010). Article 11.07 provides no role for the courts of appeals in this process.
See id. Accordingly, we are without jurisdiction to order the trial court to conduct a hearing on
Relator’s ―illegal sentence‖ complaint. Additionally, the court of criminal appeals has already
dismissed the habeas application in which Relator made this complaint. Even if we otherwise
had a role in postconviction felony habeas proceedings, we would have no authority to direct the
trial court to review an issue raised in a habeas application that the court of criminal appeals has
dismissed.


                                                   CONCLUSION
         Relator has not shown that the trial court has a duty to rule on his motions. Therefore, he
has not shown that he is entitled to mandamus relief relating to the trial court’s alleged failure to
rule. Accordingly, we deny the portion of Relator’s petition for writ of mandamus related to the
trial court’s alleged failure to rule.
         We lack jurisdiction to direct the trial court to conduct a hearing concerning whether
Relator’s sentence is illegal. Therefore, we dismiss for want of jurisdiction the portion of
Relator’s petition related to his ―illegal sentence‖ complaint.
Opinion delivered March 16, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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