Opinion
No. 04-18-00229-CR
04-25-2018
In re Carlton STROUD
MEMORANDUM OPINION
Original Mandamus Proceeding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice PETITION FOR WRIT OF MANDAMUS DENIED
This proceeding arises out of Cause Nos. NM377448, NM377449, NM37750, styled State v. Stroud, pending in the 186th Judicial District Court, Bexar County, Texas, the Honorable Jefferson Moore presiding.
On April 11, 2018, relator filed a petition asking this court to issue a writ of mandamus compelling the trial court to consider and rule on his motion to reverse the magistrate's finding of probable cause.
To be entitled to mandamus relief compelling a trial court to rule on a properly filed motion, 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 or refused to rule on the motion within a reasonable period of time. In re Gallardo, 269 S.W.3d 643, 644-45 (Tex. App.—San Antonio 2008, orig. proceeding). Whether a delay in ruling on a motion is unreasonable depends on the circumstances of each case. Id. at 645. We consider various factors in determining whether a motion has been pending for an unreasonable time, including the trial court's actual knowledge of the pending motion, its overt refusal to act on it, the state of the trial court's docket, and the trial court's inherent power to control its docket. Id. A relator has the burden of providing this court with a record sufficient to establish a right to mandamus relief. Id.; see TEX. R. APP. P. 52.7(a) (stating a relator must file a certified or sworn copy of every document material to his claim for relief that was filed in the underlying proceeding).
Here, relator has not provided this court a record sufficient to establish a right to mandamus relief. Attached to relator's petition is a copy of his motion to reverse the magistrate's finding of probable cause. Relator asserts that he filed the motion in the trial court on April 6, 2018. However, relator has not provided us with a file-marked copy of the motion, a copy of the trial court's docket, or any other proof that the motion is pending before the trial court. Additionally, relator has not provided us with any proof that the trial court has expressly refused to rule on the motion or that the motion has been pending in the trial court for an unreasonable amount of time. Because the record does not establish that the motion in question was filed with the trial court clerk, that the trial court was made aware of the motion, and that the trial court failed or refused to rule on the motion within a reasonable amount of time, relator has not shown himself entitled to mandamus relief. We, therefore, deny relator's petition for a writ of mandamus.
PER CURIAM DO NOT PUBLISH