In Re Robert Pennock v. the State of Texas

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July
18, 2024

In The

Fourteenth Court of Appeals

NO. 14-24-00450-CR

IN RE ROBERT PENNOCK, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
263rd District Court
Harris County, Texas
Trial Court Cause No. 1732395

MEMORANDUM OPINION

On Thursday, June 20, 2024, relator Robert Pennock filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable Melissa
Morris, presiding judge of the 263rd District Court of Harris County, to order the
court clerk to comply with Texas Rule of Appellate Procedure 31.1. See Tex. R.
App. P. 31.1.
To be entitled to mandamus relief, the relator must show that (1) he has no
adequate remedy at law to redress his alleged harm, and (2) what he seeks to
compel is a ministerial act, not a discretionary act. In re Johnson, No. 14-23-
00634-CR, 2023 WL 5809968, at *1 (Tex. App.—Houston [14th Dist.] Sept. 7,
2023, orig. proceeding.); see In re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim.
App. 2017) (orig. proceeding). A trial court has a ministerial duty to consider and
rule on motions properly filed and pending before it, and mandamus may issue to
compel the trial court to act. Johnson, 2023 WL 5809968, at *1. For relator to be
entitled to mandamus relief, the record must show (1) the motion was filed and
brought to the attention of the respondent-judge for a ruling, and (2) the
respondent-judge has not ruled on the motion within a reasonable time after the
motion was submitted to the court for a ruling or after the party requested a ruling.
Id.
As the party seeking mandamus relief, relator has the burden of providing
this court with a sufficient record to establish his right to mandamus relief. Id; see
Tex. R. App. P. 52.7(a)(1) (relator must file with the mandamus petition “a
certified or sworn copy of every document that is material to the relator's claim for
relief and that was filed in any underlying proceeding”). To establish that the
motion was filed, the relator must provide either a file-stamped copy of the motion
or other proof that the motion in fact was filed and is pending before the trial court.
Id. Merely filing a motion with a court clerk does not show that the motion was

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brought to the trial court's attention for a ruling because the clerk's knowledge is
not imputed to the trial court. Id.
Relator has not provided this court with any documents filed in the
underlying proceeding. See id. There is no mandamus record to demonstrate that a
motion requesting the trial court order the court clerk to comply with Texas Rule
of Appellate Procedure 31.1 is pending in the trial court. See id. Similarly, there is
no record that relator has brought a pending motion to the attention of the
respondent-judge for a ruling. See id. Mere filing is insufficient because the clerk's
knowledge is not imputed to the trial judge. Id. The respondent-judge is not
required to consider a motion that has not been called to the trial court's attention
by proper means. Id. Even if relator showed that his motion is properly pending in
the trial court and the trial court was made aware of it, relator has not shown that it
has been pending for an unreasonable period of time. See id.
Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Wise, Bourliot, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).

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