Opinion
No. 04-11-00727-CR
10-12-2011
IN RE Andrew RAMIREZ
MEMORANDUM OPINION
Original Mandamus Proceeding
This proceeding arises out of Cause Nos. 2010-CR-3306 and 2010-CR-3307, styled State of Texas v. Andrew Ramirez, in the 186th Judicial District Court, Bexar County, Texas, the Honorable Maria Teresa Herr presiding.
PER CURIAM Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
PETITION FOR WRIT OF MANDAMUS DENIED
On October 3, 2011, relator filed a petition for writ of mandamus, seeking to compel the trial court to rule on his pro se motion for judgment nunc pro tunc. However, in order to be entitled to mandamus relief, relator must establish that the trial court: (1) had a legal duty to perform a non-discretionary 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). When a properly filed motion is pending before a trial court, the act of giving consideration to and ruling upon that motion is ministerial, and mandamus may issue to compel the trial judge to act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding). However, mandamus will not issue unless the record indicates that a properly filed motion has awaited disposition for an unreasonable amount of time. See id. Relator has the burden of providing this court with a record sufficient to establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a) ("Relator must file with the petition [ ] a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding"); see also TEX. R. APP. P. 52.3(k)(1)(A); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).
Here, relator has not provided this court with a file stamped copy of his motion or any other documents to show that a properly filed motion is pending before the trial court and has been brought to the trial court's attention. Additionally, relator asserts he filed his motion on September 23, 2011, just ten days before relator's petition for writ of mandamus was filed in this court. Relator has failed to meet his burden that a properly filed motion has awaited disposition for an unreasonable amount of time. See id. Based on the foregoing, we conclude relator has not shown himself entitled to mandamus relief. Accordingly, relator's petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM DO NOT PUBLISH