in Re Benito Sanchez, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00798-CR

IN RE Benito G. SANCHEZ

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: November 23, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

On November 7, 2011, relator filed a petition for writ of mandamus, seeking to compel

the trial court to rule on his pro se motions 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 No. 2011-CR-2233W, styled State of Texas v. Benito G. Sanchez, in the 437th Judicial District Court, Bexar County, Texas, the Honorable Lori I. Valenzuela presiding. 04-11-00798-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 motions 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 motions on

October 5, 2011 and October 27, 2011. We cannot say the motions have 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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