Opinion
No. 04-11-00836-CR
12-21-2011
IN RE David SALINAS
MEMORANDUM OPINION
Original Mandamus Proceeding
This proceeding arises out of Cause No. 1996-CR-1191, styled State of Texas v. David Salinas, in the 186th Judicial District Court, Bexar County, Texas, the Honorable Maria Teresa Herr presiding.
PER CURIAM Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
PETITION FOR WRIT OF MANDAMUS DENIED
On November 21, 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 asserts he filed his motion on September 8, 2011 and sent a formal notice of the filing to the trial court on October 27, 2011. However, at this time we cannot say the motion has awaited disposition for an unreasonable amount of time. 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PER CURIAM DO NOT PUBLISH