                                      IN THE
                              TENTH COURT OF APPEALS



                                       No. 10-10-00357-CR

                               IN RE ROBERT WHITFIELD


                                      Original Proceeding



                               MEMORANDUM OPINION


        In this second original proceeding that Relator Robert Whitfield has filed this

year, (see In re Whitfield, No. 10-10-00231-CR, 2010 WL 2683134 (Tex. App.—Waco July 7,

2010, orig. proceeding) (mem. op.)), he again seeks mandamus relief against the

Respondent District Judge and, this time, also against the Respondent District Clerk and

the Respondent District Attorney on the primary allegation that the district judge has

failed to hold a hearing and make findings under article 64.04 of the Code of Criminal

Procedure.1


         1 Article 64.04 provides:       “After examining the results of testing under Article 64.03, the
convicting court shall hold a hearing and make a finding as to whether, had the results been available
during the trial of the offense, it is reasonably probable that the person would not have been convicted.”
TEX. CODE CRIM. PROC. ANN. art. 64.04 (Vernon 2006); see In re Jackson, 238 S.W.3d 605 (Tex. App.—Waco
2007, orig. proceeding).
        A court of appeals has no jurisdiction to issue a writ of mandamus against a

district clerk except to protect or enforce its jurisdiction. See TEX. GOV’T CODE ANN. §

22.221 (Vernon 2004); In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig.

proceeding). We do not have jurisdiction to decide Whitfield’s mandamus proceeding

against the district clerk. For the same reason, we lack jurisdiction to decide Whitfield’s

mandamus proceeding against the district attorney. See In re Jones, No. 06-03-00061-CV,

2003 WL 1985247 (Tex. App.—Texarkana April 30, 2003, orig. proceeding) (mem. op.)

(not designated for publication). We thus dismiss it as to those two respondents for

want of jurisdiction.2

        Whitfield’s “record” contains copies of two motions, file-marked July 29, 2010

and September 7, 2010, respectively, requesting the trial court to hold an article 64.04

hearing with respect to DNA testing that was ordered and then was done in 2009. Also

included is a purported copy of a September 3, 2010 letter to the district clerk asking her

to bring his motion (the one file-marked September 3) to the trial judge’s attention.




         2 Whitfield’s “application” for writ of mandamus has several procedural deficiencies. It does not

include the certification required by Rule of Appellate Procedure 52.3(j). See TEX. R. APP. P. 52.3(j).
Copies of the supporting documents are not certified or sworn to, as required by Rules 52.3(k) and
52.7(a)(1). See id. 52.3(k), 52.7(a)(1). And, the application lacks proof of service on the Respondent District
Judge; the certificate of service notes service on only the Respondent District Clerk and Respondent
District Attorney. See id. 52.2. A copy of all documents presented to the Court must be served on all
parties to the proceeding and must contain proof of service. Id. 9.5. Because of our disposition and to
expedite it, we will implement Rule 2 and suspend these rules in this proceeding only. Id. 2.

         Whitfield also filed an affidavit and a motion for leave to file his application for writ of
mandamus. The motion for leave is dismissed as moot because such motions are no longer required
under the Texas Rules of Appellate Procedure. The motion for leave reflects proof of service on only the
Respondent District Judge; it lacks proof of service on the Respondent District Clerk and Respondent
District Attorney. The affidavit lacks any proof of service. Because of our disposition and to expedite it,
we will implement Rule 2 and suspend Rule 9.5 as to the affidavit and motion for leave. Id. 2.


In re Robert Whitfield                                                                                 Page 2
        Whitfield analogizes his postconviction DNA proceeding to a postconviction

habeas corpus proceeding and argues that the convicting court has thirty-five days to

rule on his motions. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(b, c) (Vernon Supp.

2010). But Chapter 64 has no similar timeline. Instead, as we noted in Whitfield’s first

proceeding,

               A trial judge has a reasonable time to perform the ministerial duty
        of considering and ruling on a motion properly filed and before the judge.
        In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.
        proceeding). But that duty generally does not arise until the movant has
        brought the motion to the trial judge’s attention, and mandamus will not lie
        unless the movant makes such a showing and the trial judge then fails or
        refuses to rule within a reasonable time. See id.

Whitfield, 2010 WL 2683134, at *1 (emphasis added).

        And we repeat again (from our opinion in his first proceeding) that Whitfield

still has not shown with a record that he has brought the motion to the trial judge’s

attention:

               Whitfield’s application and “record” do not show that he has
        brought his motion to the trial judge’s attention or that he has otherwise
        requested the trial judge to hold the article 64.04 hearing. Whitfield’s
        “record” has one letter (dated June 2, 2010) to the District Clerk, and it
        asks only if any “ruling, order or any decision” had been made on his
        motion. The mere filing of a pleading or letter with the clerk does not
        impute knowledge to the trial court. See In re Flores, No. 04-03-00449-CV,
        2003 WL 21480964 (Tex. App.—San Antonio June 25, 2003, orig.
        proceeding). Whitfield has not shown that he has brought the matter to
        the attention of the trial judge.

Id. (emphases added).




In re Robert Whitfield                                                                 Page 3
        Because Whitfield has again not shown that he is entitled to relief, we deny his

request for a writ of mandamus.3


                                                          REX D. DAVIS
                                                          Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the court’s judgment to the extent it denies
       Whitfield’s petition. A separate opinion will not issue.)
Petition denied
Opinion delivered and filed October 20, 2010
Do not publish
[OT06]




        3 We repeat what we have expressed regarding inmate civil litigation because it appears to be
applicable to this proceeding where the same issue has now been raised twice:

        [W]e are confident that Respondent will proceed to dispose of [Relator’s] motions and
        lawsuit in a timely fashion. We acknowledge the burden of pro se inmate litigation, but
        as long as a suit satisfies Chapter 14 of the Civil Practice and Remedies Code, our judicial
        system must function for such litigation as it does with any other. In addition to
        providing litigants with their “day in court,” such functioning will render unnecessary
        original proceedings such as this one.

In re Comeaux, No. 10-10-00243-CV, 2010 WL 3703662, at *1 (Tex. App.—Waco Sept. 22, 2010, orig.
proceeding) (mem. op.) (emphasis added) (quoting In re Comeaux, No. 10-07-00235-CV, 2007 WL 4260638,
at *2 & n.1 (Tex. App.—Waco Dec. 5, 2007, orig. proceeding) (mem. op.).


In re Robert Whitfield                                                                                 Page 4
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