Opinion
No. 05-18-00656-CV
06-07-2018
IN RE JOSEPH IVAN FIGUEROA, Relator
Original Proceeding from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-82894-2014
MEMORANDUM OPINION
Before Justices Lang, Myers, and Whitehill
Opinion by Justice Whitehill
Joseph Ivan Figueroa filed this original proceeding complaining that the trial court has not ruled on his motion for speedy trial. For the reasons that follow, we deny the petition.
To establish a right to mandamus relief in a criminal case, the relator must show that the trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). To be entitled to mandamus relief compelling a trial court to rule on a motion, a relator must establish that the trial court (1) had a legal duty to rule on the motion because the motion was properly filed and timely presented, (2) was asked to rule on the motion, and (3) failed or refused to rule on the motion within a reasonable period of time. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).
As the party seeking relief, the relator has the burden of providing the Court with a sufficient mandamus record to establish his right to mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rules 52.3 and 52.7 require the relator to provide "a certified or sworn copy" of certain documents, including any order complained of, any other document showing the matter complained of, and every document that is material to the relator's claim for relief that was filed in any underlying proceeding. TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
The mandamus record does not include a certified or sworn copy of the trial court's docket sheet or other proof establishing (1) relator filed the motion for speedy trial, (2) relator requested a hearing and/or ruling on the motion, and (3) the trial court failed to act on relator's requests within a reasonable time. TEX. R. APP. P. 52.3(k)(1)(a), 52.7(a); see In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001) (orig. proceeding) (filing a document with the district clerk does not impute knowledge of a motion to the trial court). Without such evidence, we cannot say that the trial court abused its discretion by failing to act or rule on relator's motion. See id. Because this record is insufficient, relator has not established a violation of a ministerial duty and is not entitled to mandamus relief.
We deny relator's petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief sought).
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 180656F.P05