in Re Ismael Diaz, Jr.

• Court: Court of Appeals of Texas
• Decided: August 9, 2006
• Docket: 04-06-00485-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-06-00485-CV

IN RE Ismael DIAZ, Jr.

Original Mandamus Proceeding ⁽¹⁾

PER CURIAM

Sitting: Alma L. López , Chief Justice

Karen Angelini , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: August 9, 2006

PETITION FOR WRIT OF MANDAMUS DENIED

Ismael Diaz, Jr., seeks a writ of mandamus compelling the trial court to rule on his motion for judgment nunc pro tunc addressing jail credit. A trial court is required to consider and rule on a motion within a reasonable time. In re Mendoza, 131 S.W.3d 167, 167 (Tex. App.--San Antonio 2004, orig. proceeding). When a trial court fails to rule on a jail credit motion within a reasonable time, mandamus may issue to compel the trial court to act. Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004). We consider many factors in determining if the trial court has unnecessarily delayed a ruling, including the trial court's actual knowledge of the motion, its overt refusal to act on it, the status of the trial court's docket, and the existence of other judicial and administrative matters which must be addressed. Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.--Amarillo 2001, orig. proceeding). The relator has the burden of providing this court a record sufficient to establish his right to relief. In re Mendoza, 131 S.W.3d at 167-68; Tex. R. App. P. 52.3(j), 52.7(a). In this case, Diaz asserts his motion was filed in June 2006 but he has not provided this court with a copy of his motion and proof of its filing. Diaz has not shown the trial court has actual knowledge of his motion or refused to act on it. In sum, Diaz has not met his burden of establishing the trial court's failure to rule on his motion within a reasonable time. Accordingly, his petition for a writ of mandamus is denied.

1. This proceeding arises out of Cause No. 96-CR-170 , styled State of Texas v. Ismael Diaz, Jr., filed in the 229th Judicial District Court, Starr County, Texas .