in Re Andrew Ramirez, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00727-CR

IN RE Andrew RAMIREZ

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: October 12, 2011

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

1 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. 04-11-00727-CR

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).

DO NOT PUBLISH

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