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In re Prado

Court of Appeals Fifth District of Texas at Dallas
Jan 23, 2017
522 S.W.3d 1 (Tex. App. 2017)

Opinion

No. 05–16–01468–CV No. 05–16–01470–CV

01-23-2017

IN RE Alex Ramiro PRADO, Relator

Alex Ramiro Prado, Beaumont, TX, for appellant. Faith Johnson, Dallas, TX, for appellee.


Alex Ramiro Prado, Beaumont, TX, for appellant.

Faith Johnson, Dallas, TX, for appellee.

Before Justices Lang –Miers, Evans, and Schenck

MEMORANDUM OPINION

Opinion by Justice Lang –Miers

Before the Court is relator's December 15, 2016 petition for writ of mandamus in which relator complains that the district court has not ruled on his motion for speedy trial or other motions, including a motion to dismiss, a request that the court release the warrant, and a writ of habeas corpus.

To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). A defendant seeking to compel the dismissal of an indictment or complaint on speedy trial grounds has an adequate remedy at law, and therefore, is not entitled to mandamus. Smith v. Gohmert , 962 S.W.2d 590, 593 (Tex. Crim. App. 1998). Consideration of a motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray , 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding). A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. In re Keeter , 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding) ; In re Villarreal , 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). It is relator's burden to provide the court with a record sufficient to establish his right to relief. Walker v. Packer , 827 S.W.2d 833, 837 (Tex.1992) ; TEX. R. APP. P. 52.3(k), 52.7(a).

Relator is not entitled to mandamus relief as to his request for a speedy trial because he has an adequate remedy on appeal. See Gohmert , 962 S.W.2d at 593. As for his request that this Court order the trial court to rule on his other motions, the record is insufficient to establish that the motions were properly filed, that the trial court was requested to rule on the motions, and that the trial court refused to rule. The petition for writ of mandamus is not certified as required by rule 52.3(j) and does not include an appendix or record that establishes what motions relator filed in the trial court or when they were filed. The petition also does not establish the manner in which relator has called these motions to the attention of the trial court. Absent proof that the motions were properly filed, and that the trial court has been requested to rule on the motions but refused to so, relator has not established his entitlement to the extraordinary relief of a writ of mandamus. See In re Florence , 14–11–00096–CR, 2011 WL 553241, at *1 (Tex. App.—Houston [14th Dist.] Feb. 17, 2011, no pet.). Accordingly, we deny relator's petition for writ of mandamus.


Summaries of

In re Prado

Court of Appeals Fifth District of Texas at Dallas
Jan 23, 2017
522 S.W.3d 1 (Tex. App. 2017)
Case details for

In re Prado

Case Details

Full title:IN RE ALEX RAMIRO PRADO, Relator

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jan 23, 2017

Citations

522 S.W.3d 1 (Tex. App. 2017)

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