in Re: Jaime Luevano

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

                                                                              )

                                                                              )              No.  08-06-00139-CR

IN RE:  JAIME LUEVANO                                  )     AN ORIGINAL PROCEEDING

                                                                              )                 IN MANDAMUS

OPINION ON PETITION FOR WRIT OF MANDAMUS

Relator, Jaime Luevano has filed a pro se petition for writ of mandamus, seeking an order compelling the county clerk and district clerk to return motions he has filed in the trial court.^[1]   Relator also filed a Motion to Amend Writ of Mandamus, seeking an order compelling the county clerk and district clerk to return the motions listed above, as well as a Motion for Speedy Trial and a Motion for New Trial and an order to compel Criminal County Court of Law No. 2, to rule on his Motion for New Trial.

We have no authority to issue a writ of mandamus to the district clerk in this case. See Tex. Gov=t Code Ann. ' 22.221(a), (b)(Vernon 2004).  Furthermore, to obtain mandamus relief in a criminal matter, the relator must establish:  (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law.  Dickens v. Court of Appeals for Second Supreme Judicial Dist. Of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987).  Relator has the burden for providing a record sufficient to establish his right to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Bates, 65 S.W.3d 133, 135 (Tex.App.--Amarillo 2001, orig. proceeding).  From the record before us, we cannot determine whether the said motions were properly filed with the trial court or that the trial court received and was made aware of the motion.  See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig. proceeding) (filing the matter with the district clerk was not sufficient to impute knowledge of the pleading such that the trial court was made aware of it); Barnes v. State, 832 S.W.2d 424, 426-27 (Tex.App.--Houston [1st Dist.] 1992, orig. proceeding)(relator must show that motion was brought to the trial court=s attention and the court failed or refused to rule); cf. In re Daisy, 156 S.W.3d 922, 924 (Tex.App.--Dallas 2005, orig. proceeding)(granting mandamus relief where record contained several form letters from the trial court to relator giving various reasons why the court could not or would not rule on his motion).

Based on the record before us, we are unable to conclude that Relator is entitled to the relief requested.  Accordingly, the petition for writ of mandamus is denied and Relator=s Motion to Expedite Writ is denied as moot.

July 27, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

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^[1] These motions referred to in the writ and attached as exhibits to the writ, include AMotion to Withdraw Plea, Refile Motion to Withdrawal of Plea in General, Motion for New Trial, Motion for Discovery-Disclosure and Suppress Jurors Names, and Motion for Mandatory Withdrawal of Counsel.@  The motions attached as exhibits to the writ are copies and do not contain a filed stamp.