ORIGINAL PROCEEDING WRIT OF MANDAMUS 174th District Court
Harris County, Texas Trial Court Cause No. 716513
consists of Justices Wise, Zimmerer, and Spain.
December 27, 2018, relator Thermon James Flanigan filed a
petition for writ of mandamus in this court. See
Tex. Gov't Code Ann. § 22.221 (Supp.); see
also Tex. R. App. P. 52. In the petition, relator asks
this court to compel the Honorable Hazel B. Jones, presiding
judge of the 174th District Court of Harris County, to
examine the results of alleged D.N.A. testing, hold a
hearing, 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, and
notify relator of the court's ruling. See Tex.
Crim. Proc. Code § 64.04.
entitled to mandamus relief, a relator must show (1) the
relator has no adequate remedy at law for obtaining the
relief sought; and (2) what the relator seeks to compel
involves a ministerial act rather than a discretionary act.
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. In re Henry, 525 S.W.3d 381
(Tex. App.-Houston [14th Dist.] 2017, orig. proceeding) (per
curiam). "A trial court is required to rule on a motion
within a reasonable time after the motion has been submitted
to the court for a ruling or a ruling on the motion has been
requested." In re Foster, 503 S.W.3d 606, 607
(Tex. App.-Houston [14th Dist.] 2016, orig. proceeding).
party seeking relief, relator has the burden of providing
this court with a sufficient record to establish
relator's right to mandamus relief. See Lizcano v.
Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011)
(orig. proceeding) (Alcala, J. concurring); Tex.R.App.P.
52.7(a)(1) (relator must file with 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"); Tex.R.App.P. 52.3(j) (relator
must certify "that every factual statement in the
petition is supported by competent evidence included in the
appendix or record").
entitled to mandamus relief for a trial judge's failure
to rule on a motion within a reasonable time, the record must
show both that the motion was filed and brought to the
attention of the judge for a ruling. See In re
Wigley, No. 14-17-00102-CV, 2017 WL 642109, at *1 (Tex.
App.-Houston [14th Dist.] Feb. 16, 2017, orig. proceeding)
(per curiam) (mem. op.); In re Foster, 503 S.W.3d at
establish that the motion was filed, relator must provide
either a file stamped copy of the motion or other proof that
the motion was in fact filed and is pending before the trial
court. See In re Bishop, No. 14-06-00636-CV, 2006 WL
2434200, at *1 (Tex. App.-Houston [14th Dist.] Aug. 24, 2006,
orig. proceeding) (per curiam) (mem. op.); In re
Henry, 525 S.W.3d at 382 (denying petition to compel
ruling on motion because "[t]he documents attached to
relator's petition for writ of mandamus do not reflect a
file stamp establishing that they were filed in the trial
court."); In re Molina, 94 S.W.3d 885, 886
(Tex. App.-San Antonio 2003, orig. proceeding) (denying
petition to compel ruling on motions for DNA testing because
relator failed to provide a record showing the alleged
motions had been filed).
is not entitled to mandamus relief because he has not
provided this court with any mandamus record, much less a
record showing that (1) he has filed a motion requesting the
trial court to hold a hearing and make a finding, as provided
for by Article 64.04 of the Code of Criminal Procedure, and
(2) the trial court has refused or failed to rule on such a
motion within a reasonable time.
relator has raised the possibility that he is represented by
counsel, stating "upon notice from court appointed
attorney that a motion to be removed from court appointed
duties with respect to DNA Testing . . ., relator sent his
motion for objection (sent on 3-26-18) of court appointed
attorney being released from appointment . . .". If
relator has counsel, then he is not entitled to hybrid
representation. See Robinson v. State, 240 S.W.3d
919, 922 (Tex. Crim. App. 2007); Patrick v. State,
906 S.W.2d 481, 498 (Tex. Crim. App. 1995). The absence of a
right to hybrid representation means that a relator's pro
se mandamus petition should be treated as presenting nothing
for this court's review. See Gray v. Shipley,
877 S.W.2d 806, 806 (Tex. App.-Houston [1st Dist.] 1994,
orig. proceeding). Relator has not provided a record showing
that he is no longer represented by counsel.
these reasons, we deny relator's petition for writ of
concur in the denial of relator's petition for a writ of
mandamus, I write separately because the court does not
address the real issue underlying this original proceeding:
What is the minimum evidentiary threshold that a relator must
meet in an original proceeding to justify the appellate court
either (1) requesting a response or (2) granting the
requested relief after requesting a response? See
Tex. R. App. P. 52.3(g), (j), (k)(1)(A); see also
Tex. Gov't Code Ann. § ...