in Re Donald Ray McIntosh, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00426-CR

IN RE Donald Ray MCINTOSH

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: July 6, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

On June 21, 2011, relator filed a petition for writ of mandamus, seeking to compel the

trial court to rule on his pro se motion for speedy trial, motion for examining trial, motion in

limine, discovery motion, and motion for self-representation.

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

motion for self-representation, 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.

1 This proceeding arises out of Cause No. 2009-CR-12304, styled State of Texas v. Donald Ray McIntosh, pending in the 379th Judicial District Court, Bexar County, Texas, the Honorable Ron Rangel presiding. 04-11-00426-CR

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 has not provided this court with a file stamped copy of his motion for self-

representation or any other documents to show that a properly filed motion has been pending

before the trial court for an unreasonable amount of time. Therefore, we conclude relator has

failed to meet his burden. See id.

With regard to the remaining pro se motions relator complains the trial court has failed to

rule on, 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 S.W.3d at 922. Consequently, the trial court did not

abuse its discretion by declining to rule on relator’s pro se motions filed in the criminal

proceeding pending in the trial court.

-2- 04-11-00426-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-