in Re Kenneth Ray Sowell
14-21-00387-CR
| Tex. App. | Sep 14, 2021Background
- Kenneth Ray Sowell filed a petition in this court (styled as habeas but seeking mandamus) after the 262nd District Court did not rule on his motion for a nunc pro tunc judgment to correct an affirmative weapon finding.
- To obtain mandamus, relator must show no adequate remedy and that the act sought is purely ministerial; a trial court has a ministerial duty to consider and rule on properly filed motions.
- The clerk’s record confirms Sowell filed the nunc pro tunc motion in the trial court and an appeal challenging the trial court’s failure to rule is pending in this court.
- The record does not show the motion was presented to the trial judge; mere filing with the clerk does not prove the judge was notified because clerk knowledge is not imputed to the court.
- Because Sowell failed to show the motion was brought to the trial court’s attention, the court denied mandamus relief. Panel per curiam; Justice Spain dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to mandamus to compel ruling on nunc pro tunc motion | Sowell: motion filed in trial court; judge must rule | Trial court: relator did not show motion was presented to judge; no duty shown to act | Denied — relator failed to show trial court was asked to rule or refused to rule within a reasonable time |
| Whether filing with clerk proves presentation to court | Sowell: clerk’s record shows filing; suffices | Trial court: clerk’s knowledge is not imputed to judge; filing alone insufficient | Filing with clerk alone insufficient to show presentation to judge; must show motion brought to court’s attention |
Key Cases Cited
- In re Yeager, 601 S.W.3d 356 (Tex. Crim. App. 2020) (mandamus standards: no adequate remedy and act purely ministerial)
- In re Henry, 525 S.W.3d 381 (Tex. App.—Houston [14th Dist.] 2017) (trial court has ministerial duty to consider and rule on pending motions)
- In re Ramos, 598 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2020) (clerk’s knowledge is not imputed to the trial court)
- Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987) (appellate courts may take judicial notice of their own records)