Opinion
No. 04-09-00749-CR
Delivered and Filed: December 9, 2009. DO NOT PUBLISH.
Original Mandamus Proceeding. Petition for Writ of Mandamus Denied.
This proceeding arises out of Cause No. 2009-CR-10097, styled State of Texas v. Kevin J. Rezendes, pending in the 290th Judicial District Court, Bexar County, Texas, the Honorable Sharon MacRae presiding.
Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
On November 20, 2009, relator Kevin Rezendes filed a petition for writ of mandamus, complaining of the trial court's failure to rule on his motion to disqualify his attorney. To obtain a writ of mandamus compelling the trial court to consider and rule on a motion, a 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). The record before us fails to establish relator is entitled to the relief requested. Relator alleges Mr. James Tocci was appointed to represent him in the underlying criminal proceeding and relator alleges he filed a motion to disqualify Mr. Tocci because counsel has failed to communicate with him. This court has been informed by the trial court clerk that no attorney has yet been appointed to represent relator and no motions are pending in trial cause number 2009-CR-10097. Accordingly, because relator has not met his burden of providing a record establishing that a motion was properly filed and has awaited disposition for an unreasonable amount of time, he has not provided this court with grounds to usurp the trial court's inherent authority to control its own docket. See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.-San Antonio 2004, orig. proceeding). Accordingly, relator's petition for writ of mandamus is denied. TEX. R. APP. P. 52.8(a).
We note James Tocci has been appointed to represent the relator in a different matter in trial cause number 2009-CR-4467 pending in Bexar County.