in Re Enrique Amaya Ramirez Jr.

• Court: Court of Appeals of Texas
• Decided: January 10, 2013
• Docket: 13-13-00009-CR
• Status: Published

Opinion

NUMBER 13-13-00009-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE ENRIQUE AMAYA RAMIREZ JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Justices Garza, Benavides and Perkes Memorandum Opinion by Justice Garza1 Relator, Enrique Amaya Ramirez Jr., a pro se inmate, has filed a petition for writ

of mandamus in which he argues that the presiding judge of the trial court abused

relator’s discretion, leaving him without an adequate appellate remedy, by failing to

grant, or at least rule upon, his motion requesting shock probation. We will deny the

petition.

It is relator’s burden to properly request and show entitlement to mandamus

1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions), 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”). relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks.”). Relator must furnish, inter alia, an

appendix or record sufficient to support the claim for mandamus relief. In re Blakeney,

254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see TEX. R. APP.

P. 52.3(k) (specifying the required contents for the appendix), 52.7(a) (specifying the

required contents for the record). Moreover, relator must certify that he has reviewed

the petition and concluded that every factual statement in the petition is supported by

competent evidence included in the appendix or record. See TEX. R. APP. P. 52.3(j).

To obtain mandamus relief for the refusal to rule, a relator must establish: (1) the

motion was properly filed and has been pending for a reasonable time; (2) the relator

requested a ruling on the motion; and (3) the trial court refused to rule. See In re

Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding). Showing

that a motion was filed with the court clerk does not constitute proof that the motion was

brought to the trial court's attention or presented to the trial court with a request for a

ruling. See In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig.

proceeding).

The Court is of the opinion that relator has not shown himself entitled to

mandamus relief, for several reasons. First, relator has not provided the Court with a

record or appendix showing that he filed the motion with the trial court or asked the trial

court to rule on the motion. See TEX. R. APP. P. 52.7(a)(1); In re Sarkissian, 243 S.W.3d

at 861. Second, even if we were to accept relator’s allegations as true, relator has

offered no legal authority or evidence showing that the alleged delay in ruling

2 constitutes an unreasonable period of time for the trial court to consider the motion.

Third, even if we were to agree that relator is entitled to mandamus relief to compel the

trial court to rule on his motion, we would not direct the trial court to rule on the motion

in a certain way. See In re Blakeney, 254 S.W.3d at 661. Finally, relator cannot show

an abuse of discretion because the decision whether to grant shock probation is

committed to the discretion of the trial court. See TEX. CODE CRIM. PROC. ANN. art.

42.12, § 6 (West Supp. 2011).

Having reviewed and fully considered relator’s petition, we conclude that relator

has not shown himself entitled to the relief sought. Accordingly, the petition for writ of

mandamus is DENIED.

DORI CONTRERAS GARZA Justice

Do not publish. TEX. R. APP. P. 47.2(b)

Delivered and filed the 10th day of January, 2013.