in Re David Smith, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00908-CR

IN RE David SMITH

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: January 18, 2012

PETITION FOR WRIT OF MANDAMUS DENIED

On December 19, 2011, relator filed a petition for writ of mandamus, seeking to compel

the trial court to rule on his pro se motion to dismiss appointed counsel and various other pro se

motions.

With regard to the various pro se motions, counsel has been appointed to represent relator

in the criminal proceeding pending in the trial court for which he is currently confined. A

criminal defendant is not entitled to hybrid representation. See Robinson v. State, 240 S.W.3d

919, 922 (Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995).

A trial court has no legal duty to rule on pro se motions or petitions filed with regard to a

criminal proceeding in which the defendant is represented by counsel. See Robinson, 240

1 This proceeding arises out of Cause No. 2011-CR-9957, styled State of Texas v. David Smith, pending in the 186th Judicial District Court, Bexar County, Texas, the Honorable Maria Teresa Herr presiding. 04-11-00908-CR

S.W.3d at 922. Consequently, the trial court did not abuse its discretion by declining to rule on

relator’s pro se motion filed in the criminal proceeding pending in the trial court.

With regard to relator’s complaint that the trial court has failed to rule on his pro se

motion to dismiss appointed counsel, 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 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 18, 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 18, 2011, we

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

-2- 04-11-00908-CR

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

-3-