Opinion
No. 01-10-00471-CR
Opinion issued August 3, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
Original Proceeding on Petition for Writ of Mandamus.
Panel consists of Justices KEYES, HANKS, and HIGLEY.
MEMORANDUM OPINION
Relator, Frank Garcia, Jr., was convicted by a jury of the offense of aggravated assault and sentenced to confinement for 32 years. On June 17, 1999, this Court issued an opinion affirming the trial court's judgment. Garcia v. State, 17 S.W.3d 1 (Tex. App.-Houston [1st Dist.] Jun. 17, 1999, pet. ref'd). Our mandate issued on February 11, 2000. Relator has filed a pro se petition for writ of mandamus complaining that the trial court entered a judgment nunc pro tunc and an order of commitment nunc pro tunc on September 16, 2002 in trial court cause number 29980C. Relator requests that this Court find the orders entered by the trial court on September 16, 2002 void. Relator also requests that we compel the trial court to remove the affirmative finding of a deadly weapon from its nunc pro tunc judgment of conviction and order of commitment. We deny the petition. First, relator(s petition does not meet the requirements of the Texas Rules of Appellate Procedure because it does not certify that a copy was served on respondent trial court judge. See TEX. R. APP. P. 9.5. In addition, there are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). Relator has not provided us with a record that shows that he made any request of respondent trial court judge to perform a nondiscretionary act that respondent refused. The petition for writ of mandamus is denied. It is so ORDERED
The Honorable Brady G. Elliot, Presiding Judge, 268th District Court, Fort Bend County, Texas.