in Re Allen Graham, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00417-CR

IN RE Allen GRAHAM

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: July 13, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

On June 16, 2011, relator filed a petition for writ of mandamus, seeking to compel the

trial court to rule on his pro se “Motion to Enter Judgement [sic] and Sentence 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

1 This proceeding arises out of Cause No. 06-05-0132-CRA, styled State of Texas v. Allen Graham, in the 218th Judicial District Court, Atascosa County, Texas, the Honorable Donna Rayes presiding. 04-11-00417-CR

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

June 8, 2011, just eight days before relator’s petition for writ of mandamus was filed in this

court. Therefore, 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).

DO NOT PUBLISH

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