                                  NO. 12-16-00250-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN RE:                                            §

RICHARD CALVIN GIPSON,                            §      ORIGINAL PROCEEDING

RELATOR                                           §

                                  MEMORANDUM OPINION
                                      PER CURIAM
       Richard Calvin Gipson filed a petition for writ of mandamus, in which he complains of
the trial court’s failure to rule on his motion for appointment of counsel. We deny the petition.


                                          BACKGROUND
       Relator was convicted of intoxication manslaughter. He contends that the State used a
falsified toxicology report to obtain the conviction. Relator sought appointment of an attorney to
assist with his claims of actual innocence and ineffective assistance of counsel. According to
Relator, the trial court has yet to rule on his motion for appointment of counsel.


                                 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
         We first note that Relator has failed to file the record required by Texas Rule of Appellate
Procedure 52.7(a)(1). See id. Moreover, 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). Merely filing a motion with the district clerk does not
impute the clerk’s knowledge of the filing to the trial court. Id. It is incumbent upon the relator
to establish that the motion has been called to the trial court’s attention. See id. In this case,
Relator has not shown that he called the motion to the trial court’s attention. Consequently,
Relator has not established that mandamus is available for the trial court’s failure to rule on his
motion for appointment of counsel.


                                                   DISPOSITION
         Because Relator has not shown that he is entitled to mandamus relief, we deny his
petition for writ of mandamus.
Opinion delivered October 21, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          2
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         OCTOBER 21, 2016


                                        NO. 12-16-00250-CR


                                  RICHARD CALVIN GIPSON,
                                            Relator
                                              V.
                                    HON. JACK SKEEN, JR.,
                                          Respondent


                                       ORIGINAL PROCEEDING
                      ON THIS DAY came to be heard the petition for writ of mandamus filed
by RICHARD CALVIN GIPSON, who is the defendant in Cause No. 241-0463-06, pending on
the docket of the 241st Judicial District Court of Smith County, Texas. Said petition for writ of
mandamus having been filed herein on September 12, 2016, and the same having been duly
considered, because it is the opinion of this Court that a writ of mandamus 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.
