                                    NO. 12-14-00138-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

IN RE:                                             §

BRYAN G. WILSON,                                   §       ORIGINAL PROCEEDING

RELATOR                                            §

                                    MEMORANDUM OPINION
        Relator Bryan G. Wilson petitions for a writ of mandamus complaining of the inaction of
Cheryl Cartwright, District Clerk of Trinity County; Emily Wooten, coordinator for the 411th
Judicial District Court of Trinity County; and the Honorable Kaycee L. Jones, Judge of the 411th
Judicial District Court. We deny the petition.


                           DISTRICT CLERK AND COURT COORDINATOR
        Relator seeks mandamus relief against the district clerk and court coordinator for “refusal
or failing to relay, respond or otherwise communicate or carry out ministerial and fiduciary
duties to file, issue process and docket relator[‟]s properly filed motions. . . .”
        A court of appeals has the authority to issue writs of mandamus against a judge of a
district or county in the court of appeals district and all writs necessary to enforce its jurisdiction.
TEX. GOV‟T CODE ANN. § 22.221 (West 2004).                Unless necessary to enforce this court‟s
jurisdiction, we have no authority to issue a writ of mandamus against a district clerk or court
coordinator. See id.; In re Smith, 263 S.W.3d 93, 95 (Tex. App.–Houston [1st Dist.] 2006, orig.
proceeding). Relator has not demonstrated that the exercise of our mandamus authority against
either the district clerk or the court coordinator is necessary to enforce this court‟s jurisdiction.
Consequently, we do not have jurisdiction to grant the relief requested against Respondents
Cheryl Cartwright and Emily Wooten.
                                          DISTRICT JUDGE
       Relator complains that the trial court has failed to rule on his “Motion for Judgment of
Acquittal.” He contends that this failure constitutes a refusal to perform a ministerial act.
Mandamus and Duty to Rule
       Generally, mandamus is appropriate in a criminal case when a relator shows that he has
no adequate remedy at law to redress his alleged harm, and what he seeks is a ministerial act, not
involving a discretionary or judicial decision. 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). It is
well settled that consideration of a motion that is “properly filed and before a court” is a
ministerial act. See, e.g., State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.
1987) (orig. proceeding) (op. on reh‟g). Thus, in appropriate cases, mandamus may issue to
compel a trial court to rule on a motion. See In re Keeter, 134 S.W.3d 250, 252 (Tex. App.–
Waco 2003, orig. proceeding). But to be entitled to mandamus relief for a trial court‟s failure to
rule on a motion, a relator must establish that the trial court (1) had a legal duty to rule on the
motion; (2) was asked to rule on the motion; and (3) failed to do so. Id.
       After a conviction becomes final, the trial court‟s jurisdiction is limited to specific
functions authorized by statute or as instructed by a higher court on remand. See State v.
Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App. 2012) (orig. proceeding). Unless the trial
court has jurisdiction, mandamus is not available to compel the court to rule on a motion that is
filed after the judgment becomes final. See, e.g., Rabel v. Grace, 335 S.W.2d 227, 228 (Tex.
Crim. App. 1960).
       A void judgment is a “nullity” and can be attacked at any time. Nix v. State, 65 S.W.3d
664, 667-68 (Tex. Crim. App. 2001). A judgment for conviction of a crime is void when (1) the
document purporting to be a charging instrument does not satisfy the constitutional requisites of
a charging instrument, and thus the trial court has no jurisdiction over the defendant; (2) the trial
court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor
involving official misconduct is tried in a county court at law; (3) the record reflects that there is
no evidence to support the conviction; or (4) an indigent defendant is required to face criminal
trial proceedings without appointed counsel, when such has not been waived. Id. Although this
list has not been characterized as exclusive, “it is very nearly so.” Id. at 668.




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Relator’s Claim
       The information provided by Relator shows that he has been convicted of a felony and
his conviction is final. Nevertheless, he contends that the trial court has jurisdiction to rule on
his “Motion for Judgment of Acquittal.” He asserts in his petition that the following facts are
undisputed:


       On 4/9/2001 Jury sat, sworn, empaneled, instructed.

       On 4/16/2001 Defense counsel, enters with waiver of jury and change of plea. Judge
       accepts both, Judge dismisses jury without verdict. Judge enters guilt/innocence of
       defendant.

       On 4/17/2001 Judge begins bench trial of punishment phase and renders subsequent
       judgment of same.

       In his motion, Relator reasons, in part, that (1) jeopardy attached when the jury was “sat,
sworn, and empaneled,” (2) his waiver and change of plea were involuntary because they were
coerced by his defense counsel, and (3) defense counsel untimely submitted the waiver of jury
and change of plea to the trial court. Therefore, he urges that the trial court‟s dismissal of the
jury without a verdict following his jury waiver and change of plea was illegal because it
deprived him of his right to trial by jury. As a result of this illegal act, Relator‟s argument
continues, the trial court‟s plenary power was “frozen in position of the morning of 4-16-2001
[the date the jury was dismissed].” Consequently, the trial court did not have subject matter
jurisdiction to proceed to a bench trial. Thus, Relator concludes that the resulting judgment of
conviction is void. He concludes further that the trial court has subject matter jurisdiction, by
way of its “frozen” plenary power, to rule on his Motion for Judgment of Acquittal, correct the
wrong, and order an acquittal.
       We are not familiar with the concept of “frozen” plenary power, nor do we read the
authority cited by Relator as supporting such a concept. Moreover, Relator has not established
that ruling on his Motion for Judgment of Acquittal falls within any specific trial court function
authorized by statute. See Holloway, 360 S.W.3d at 485 (“After a trial court has lost plenary
jurisdiction, it may nonetheless re-acquire „limited‟ jurisdiction to perform specific functions as
authorized by statute or as instructed on remand by a higher court.”). Nor has he shown that a
higher court has instructed the trial court to rule on the motion. See id. And finally, none of the


                                                3
circumstances identified in Nix that make a judgment void are present in this case. Therefore,
we conclude that the trial court does not have jurisdiction to rule on Relator‟s motion. Because
the trial court does have jurisdiction to rule on the motion, it likewise has no legal duty to do so.
Absent a showing that the trial court has a legal duty to rule on his Motion for Judgment of
Acquittal, Relator cannot satisfy the prerequisites for mandamus relief against the respondent
trial court.


                                                    DISPOSITION
         Relator has failed to establish that he is entitled to mandamus relief against any of the
three named respondents. Accordingly, we deny Relator‟s petition for writ of mandamus.

                                                                  JAMES T. WORTHEN
                                                                     Chief Justice



Opinion delivered June 11, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)


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                                 COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                            JUNE 11, 2014


                                        NO. 12-14-00138-CR


                           BRYAN G. WILSON,
                                Relator
                                  V.
    HON. KAYCEE L. JONES, CHERYL CARTWRIGHT, AND EMILY WOOTEN,
                              Respondents


                                    ORIGINAL PROCEEDING
                     ON THIS DAY came to be heard the petition for writ of mandamus filed
by BRYAN G. WILSON, who is the defendant in Cause No. 8427, pending on the docket of the
411th Judicial District Court of Trinity County, Texas. Said petition for writ of mandamus
having been filed herein on May 30, 2014, 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.
                  James T. Worthen, Chief Justice.
                  Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
