in Re Charles Taylor, Jr.

Opinion

MEMORANDUM OPINION No. 04-11-00850-CR

IN RE Charles TAYLOR, Jr.

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Rebecca Simmons, Justice Marialyn Barnard, Justice

Delivered and Filed: December 7, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

On November 29, 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 No. 1998-CR-4843, styled State of Texas v. Charles Taylor, Jr., in the 227th Judicial District Court, Bexar County, Texas, the Honorable Philip Kazen presiding. 04-11-00850-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 asserts he filed his motion on October 17, 2011. However, he has not

provided this court with a file stamped copy of the 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, even if relator’s motion has been pending since October 17, 2011, we

cannot say the motion has awaited disposition for an unreasonable amount of time. 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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