Schlittler v. Calhoon (In re Schlittler)
| Decision Date | 15 September 2021 |
| Docket Number | 12-21-00141-CR |
| Parties | IN RE: DAVID SCHLITTLER, RELATORDAVID SCHLITTLER, Relator v. HON. MARK A. CALHOON, Respondent |
| Court | Texas Court of Appeals |
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
David Schlittler, acting pro se, filed this original proceeding to challenge Respondent's failure to rule on his motion to appoint counsel.[1] According to Relator, he filed a motion to appoint counsel and a supporting document with the Anderson County District Clerk on or about February 16, 2021. He provides this Court with an un-file marked copy of the motion, in which he sought appointment of counsel under Article 1.051(d)(3) of the Texas Code of Criminal Procedure.[2] The following documents are also included in Relator's appendix: (1) an un-file marked February 16 letter to the District Clerk requesting filing of his motion and forwarding of the motion to Respondent, (2) an un-file marked February 16 letter to Respondent informing him that Relator filed a motion to appoint counsel for a habeas corpus proceeding and requesting that Respondent either set a hearing on the motion or appoint counsel, (3) an un-file marked March 23 letter to Respondent seeking review of his motion with or without a hearing, (4) an un-file marked April 13 letter to Respondent asking that his motion be reviewed and counsel appointed, (5) letters to the Colorado City Texas post master and the Bellville, Texas post master inquiring about the certified mail green card for the April 13 letter, (6) a un-file marked June 22 letter to Respondent requesting a hearing on his motion, and (7) an un-file marked July 2 letter to the District Clerk asking whether his motion has been presented to Respondent and requesting a copy of the docket sheet.
"If a party properly files a motion with the trial court in a criminal case, the court has a ministerial duty to rule on the motion within a reasonable time after the motion has been submitted to the court for a ruling or after the party has requested a ruling." In re Gomez, 602 S.W.3d 71, 73 (Tex. App.-Houston [14th Dist.] 2020, orig proceeding). To obtain a writ of mandamus in this context the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.-San Antonio 2003, orig. proceeding). A trial court cannot be expected to consider a motion not called to its attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001 orig. proceeding). It is incumbent upon the relator to establish that the motion has been called to the trial court's attention. See id.
Relator's mere statement that his motion was filed is insufficient to reasonably infer that Respondent had notice of the filed motion and of the need to act on it. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.-Texarkana 2008, orig. proceeding) (trial court not required to consider motion not called to its attention; even showing motion was filed with clerk does not prove motion was brought to trial court's attention or was presented to trial court with request for ruling); see also Chavez, 62 S.W.3d at 228 (). And the record does not demonstrate that the letters Relator purportedly sent were ever actually received by their intended recipients. See In re Taylor, No. 06-16-00016-CV, 2016 WL 1435386, at *1 (Tex. App.-Texarkana Apr. 12, 2016, orig. proceeding) (relator's letters to court were not file-marked or accompanied by other evidence showing their receipt, and did not show "the trial court received, was aware of, and was asked to rule on his pleadings[ ]"). Nor does Relator's petition contain evidence, such as a docket sheet, demonstrating that the trial court has not ruled on his motion. See In re Creag, No. 12-17-00191-CV, 2017 WL 2665987, at *1 (Tex. App.-Tyler June 21, 2017, orig. proceeding) (mem. op.); see also In re Vasquez, No. 05-15-00592-CV, 2015 WL 2375504 (Tex. App.-Dallas May 18, 2015, orig. proceeding) (mem. op.) (denying petition that failed to include a docket sheet or other form or proof that trial court had not ruled on motion). Accordingly, under these circumstances, Relator has not established his entitlement to mandamus relief.
Because Relator has not shown that he is entitled to mandamus relief, we deny Relator's petition for writ of mandamus. All pending motions are overruled as moot. Opinion delivered September 15, 2021.
ON THIS DAY came to be heard the petition for writ of mandamus filed by David Schlittler; who is the relator in appellate cause number 12-21-00141-CR, and the defendant in trial court cause number 30390, formerly pending on the docket of the 3rd Judicial District Court of Anderson County, Texas. Said ...
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