                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-12-00403-CR

                         IN RE TREVER ROBERTSON


                                Original Proceeding


                          MEMORANDUM OPINION


      Trever Robertson has filed what he titled “Motion for Leave to file Petition for

Writ of Mandamus” although portions of his document could also be a Petition for Writ

of Mandamus. A motion for leave to file a petition for writ of mandamus is required

when relief is sought from the Court of Criminal Appeals. TEX. R. APP. P. 72.1. But the

requirement for leave to file at the court of appeals level was eliminated in 1997. See

TEX. R. APP. P. 52, Notes and Comments. Thus, under the applicable rules, if mandamus

relief is sought from an intermediate court of appeals, such as the Tenth Court of

Appeals, a motion for leave to file the petition is unnecessary. Accordingly, Robertson’s

motion for leave is dismissed as moot.
       As a Petition for Writ of Mandamus, there is simply inadequate information

supplied to even begin to address the legal merits of it. It appears, based upon the

punishment referenced in the motion, Robertson’s complaint relates to a motion for

new trial from the judgment in trial court number 02-089-CR which was the subject of

an appeal docketed in this Court and disposed of as 10-02-00283-CR. But Robertson

does not supply any necessary information, such as the date the sentence was imposed,

that would help us determine whether he is entitled to any relief. He simply asserts

that he filed a motion for new trial on September 6, 2012 that has not been ruled upon

by the trial court. We note that if a timely filed motion for new trial, and from what is

before us this motion for new trial does not appear to be timely filed, is not ruled on by

the trial court, the motion is deemed denied 75 days after the sentence is imposed. TEX.

R. APP. P. 21.8. That deemed denial, just like a written trial court order denying the

motion for new trial, could then be appealed, but only if the motion for new trial was

timely filed (within 30 days after the sentence is imposed). TEX. R. APP. P. 21.4(a);

26.2(a)(2). Thus, Robertson would have had an adequate legal remedy by appeal that

he appears to have lost by his delay in the filing of the motion for new trial. It therefore

appears that the trial court has no jurisdiction to rule on the untimely filed motion for

new trial. See Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987). Accordingly, to

the extent that the document Robertson has filed is a Petition for Writ of Mandamus to




In re Robertson                                                                       Page 2
compel the trial court to do that which the trial court has no jurisdiction to do, it is

denied.

       There are other procedural problems with Robertson’s document including, but

not limited to, that it was not served on the trial court judge. See TEX. R. APP. P. 52.2; 9.5.

However, we use Rule 2 to look beyond the procedural problems and reach a more

timely disposition. TEX. R. APP. P. 2.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motion dismissed as moot
Petition denied
Opinion delivered and filed November 15, 2012
Do not publish
[OT06]




In re Robertson                                                                          Page 3
