in Re: Carlo Aguirre

• Court: Court of Appeals of Texas
• Decided: February 19, 2004
• Docket: 14-04-00106-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Opinion filed February 19, 2004

Petition for Writ of Mandamus Denied and Opinion filed February 19, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00106-CV

IN RE CARLO AGUIRRE, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

O P I N I O N

On February 10, 2004, relator filed a petition for writ of mandamus in this Court.  See Tex. Gov=t. Code Ann. ' 22.221 (Vernon Supp. 2003); see also Tex. R. App. P. 52.  Relator, Carlo Aguirre, seeks a writ of mandamus ordering the judge of the 245th District Court to rule on relator=s motion for new trial. 

The factual statements in a petition for writ of mandamus must be verified by affidavit made on the personal knowledge of the affiant.  Tex. R. App. P. 52.3.  Because relator failed to include an affidavit swearing to the truth of all factual statements, the petition does not meet the requirements of Rule 52.3.

Furthermore, as the party seeking relief, relator has the burden of providing this Court with a sufficient record to establish his right to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).  Relator claims he timely filed a motion for new trial; however, timeliness cannot be determined because relator attaches a copy of an unsigned, undated judgment.  Furthermore, the copy of the motion for new trial bears no file stamp.  Having failed to meet his burden of providing a sufficient record, relator has not established his right to mandamus relief.

We deny relator=s petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed February 19, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.