in Re David Benavidez, Relator

Opinion

MEMORANDUM OPINION No. 04-12-00048-CR

IN RE David BENAVIDEZ

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: February 8, 2012

PETITION FOR WRIT OF MANDAMUS DENIED

On January 23, 2012, relator filed a petition for writ of mandamus, seeking to compel the

trial court to rule on his pro se “Motion to Enter Judgment 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. 09-08-00070-CRF, styled State of Texas v. David Benavidez, in the 218th Judicial District Court, Frio County, Texas, the Honorable Donna Rayes presiding. 04-12-00048-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 asserts he filed his motion on December 19, 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 December 19, 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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