      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00094-CV



                                   In re Michael McGoldrick


                  ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY



                            MEMORANDUM OPINION


               Relator Michael McGoldrick, an inmate, has filed a pro se petition for writ of

mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (West 2004). In the petition,

McGoldrick seeks a writ requiring the trial court to rule on his motion for a copy of the clerk’s

record and reporter’s record from his trial. McGoldrick contends that the record is necessary so that

he may prepare his post-conviction petition for writ of habeas corpus.1 For the following reasons,

we deny McGoldrick’s petition for writ of mandamus.

               As an initial matter, we address our jurisdiction to consider McGoldrick’s mandamus

petition. Generally, an intermediate court of appeals has no jurisdiction over post-conviction

applications for writ of habeas corpus in felony cases. See Tex. Code Crim. Proc. Ann. art. 11.07

(West Supp. 2012); see also Ex parte Martinez, 175 S.W.3d 510, 512–13 (Tex. App.—Texarkana

2005, orig. proceeding); Self v. State, 122 S.W.3d 294, 294–95 (Tex. App.—Eastland 2003, no pet.).


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           McGoldrick appealed the conviction from which he now seeks the clerk’s record and
reporter’s record. McGoldrick’s attorney was provided access to the appellate record, which he used
to prepare the appellate brief. This court affirmed McGoldrick’s conviction. See McGoldrick v.
State, No. 03-07-00132-CR, 2007 WL 2462035 (Tex. App.—Austin Aug. 29, 2007, no pet.).
Similarly, an intermediate appellate court has no authority to compel a trial court to rule on matters

related to a petition for writ of habeas corpus. See In re McAfee, 53 S.W.3d 715, 717–18 (Tex.

App.—Houston [1st Dist.] 2001, orig. proceeding) (concluding intermediate appellate court could

not order trial court to rule on habeas petition); see also In re Fierro, No. 03-12-00018-CV, 2012

WL 414020, at *1 (Tex. App.—Austin Feb. 9, 2012, orig. proceeding) (mem. op., not designated for

publication) (“[C]omplaints regarding the trial court’s failure to address a recusal motion filed in

connection with . . . [a] habeas proceeding should be addressed to the Court of Criminal Appeals.”).

However, the court of criminal appeals has recently held that its “exclusive Article 11.07 jurisdiction

[does not] divest[] an appellate court of jurisdiction to decide the merits of a mandamus petition

alleging that a district court is not ruling on a motion when the relator has no Article 11.07

application pending.” Padieu v. Court of Appeals of Tex., Fifth Dist., No. AP-76,727, 2013 WL

85372, at *2 (Tex. Crim. App. Jan. 9, 2013) (orig. proceeding). McGoldrick’s mandamus petition

indicates that he has not yet filed a petition for writ of habeas corpus. Therefore, we have jurisdiction

to hear his mandamus petition. See id. We next turn to the merits of McGoldrick’s claim.

                To demonstrate entitlement to a writ of mandamus in a criminal case, a relator must

establish that (1) a ministerial act, not a discretionary or judicial decision, is being sought, and that

(2) there is no other adequate legal remedy at law to redress the alleged harm. State ex. rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007,

orig. proceeding). A trial court has a ministerial duty to consider and rule, within a reasonable time,

on motions properly filed and pending before the court. See In re Layton, 257 S.W.3d 794, 795

(Tex. App.—Amarillo 2008, orig. proceeding). However, a court is not required to consider a



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motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston

[1st Dist.] 1994, writ denied).

               According to the document attached to McGoldrick’s petition, he twice filed motions

for leave to obtain copies of the records and he “respectfully requests that said judge answer said

motion.” McGoldrick filed the first motion on or about March 25, 2011, and he filed the second

motion on June 8, 2011. Admittedly, the trial court has had a reasonable amount of time to rule on

the motions, which is a ministerial act subject to mandamus relief. See State ex. rel. Hill v. Court

of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).

               However, filing a motion with the district clerk does not establish that the motion

was brought to the attention of the trial court because the clerk’s knowledge of the motion is not

imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.

proceeding). Because McGoldrick’s petition fails to demonstrate that his motion has actually been

brought to the trial court’s attention or presented for a ruling, we cannot hold under this record that

the trial court failed to perform a non-discretionary act. Therefore, we deny McGoldrick’s petition

for writ of mandamus without prejudice. See Tex. R. App. P. 52.8.

               The petition for writ of mandamus is denied.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Filed: January 29, 2013



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