                                     NO. 12-18-00245-CR
                            IN THE COURT OF APPEALS
                TWELFTH COURT OF APPEALS DISTRICT
                                        TYLER, TEXAS


 IN RE:                                                §

 LEONARD GLENN FIORI,                                  §      ORIGINAL PROCEEDING

 RELATOR                                               §

                                     MEMORANDUM OPINION
                                         PER CURIAM
        Relator Leonard Glenn Fiori, an inmate acting pro se, filed this original proceeding
requesting that we order Anderson County to quash the indictment against him and clear the
detainer against him.1 We deny the writ.


                                              BACKGROUND
        Relator states that he is serving a twenty-five-year sentence for theft resulting from a 1994
conviction in Dallas County and that Anderson County subsequently charged him with possession
of a controlled substance in 2015. Relator states that he was appointed counsel and that his counsel
filed a motion to suppress, which remains pending. He further states that he was released on bond,
but arrested in Collin County in 2017 for felon in possession of a firearm, for which he was later
convicted and sentenced to eight years in prison. Relator maintains that he then learned of the
detainer in Anderson County and contacted his court appointed counsel, but received no reply.
Relator states that he filed a motion for speedy trial in Anderson County on February 20, 2018.
He was bench warranted in April 2018, but was not picked up because of rescheduling, and in May
2018, he was again bench warranted and appointed new counsel. He wrote his attorney on May




        1
         Respondent is the Honorable C. Michael Davis, Judge of the 369th District Court in Anderson County,
Texas. The Real Party in Interest is the State of Texas.
23, 2018 to express his willingness to negotiate a plea agreement, but has not received a response.
He contends that the time limit to grant his right to a speedy trial expired on August 20.
       Attached to Relator’s petition for writ of mandamus is (1) a copy of his motion for speedy
trial, which is not file marked, and (2) a copy of his August 7, 2018 request to prison officials
seeking the agency policy behind his ineligibility for S-2 status. In his motion, Relator requested
a speedy trial to be set on or before August 15, 2018 or that the detainer and prosecution be
dismissed for denial of his constitutional right to a speedy trial.
       According to Relator, he cannot participate in education classes, is not eligible for S-2
status, and may not be granted parole, all because of the detainer against him. He further contends
that if he is released, he is subject to being rearrested because of the detainer, which will create
further hardship for his family. Thus, Relator seeks dismissal of the Anderson County charge and
voidance of the detainer.


                                  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. The relator must also furnish a record
sufficient to support his claim for mandamus relief. See TEX. R. APP. P. 52.7(a).


                                   AVAILABILITY OF MANDAMUS
       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.

                                                   2
         In the present case, Relator failed to provide this Court with any trial court documents to
establish a pending proceeding in Anderson County or that are otherwise pertinent to his request
for mandamus relief. See TEX. R. APP. P. 52.7(a); see also In re Howard, No. 12-13-00238-CR,
2013 WL 6388477, at *1 (Tex. App.—Tyler Dec. 4, 2013, no pet.) (mem. op., not designated for
publication) (relator seeking ruling on motion for speedy trial and/or to dismiss indictment or
detainer failed to provide documents establishing pendency of trial court proceedings). Even
assuming a proceeding is pending, Relator indicates that he is represented by counsel. Relator is
not entitled to hybrid representation and a trial court may disregard any pro se motions filed by a
defendant who is represented by counsel. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim.
App. 2007); see also In re Adkins, No. 12-15-00135-CR, 2015 WL 3505202, at *1 n.1 (Tex.
App.—Tyler June 3, 2015, no pet.) (mem. op., not designated for publication).
         Moreover, Relator has not shown that his motion for speedy trial was brought to
Respondent’s attention. The motion is not file-stamped; thus, the record does not indicate if or
when the motion was filed with the district clerk. Nor does Relator’s petition contain evidence,
such as a docket sheet, demonstrating that the trial court has not ruled on his 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, at *1
(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). A relator’s
statement that a document was properly filed with the clerk is an insufficient basis from which to
reasonably infer that the trial court had notice of that document and the need to act on it. Chavez,
62 S.W.3d at 228. 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 October 3, 2018.
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


                                         OCTOBER 3, 2018

                                        NO. 12-18-00245-CR



                                   LEONARD GLENN FIORI,
                                         Relator
                                           V.

                                   HON. C. MICHAEL DAVIS,
                                           Respondent


                                       ORIGINAL PROCEEDING

              ON THIS DAY came to be heard the petition for writ of mandamus filed by
Leonard Glenn Fiori; who is the relator in Cause No. 369-CR-17-33067, in the 369th Judicial
District Court of Anderson County, Texas. Said petition for writ of mandamus having been filed
herein on September 14, 2018, 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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