in Re Jeffrey Clay Milward, Relator

Opinion

MEMORANDUM OPINION No. 04-11-00619-CR

IN RE Jeffrey Clay MILWARD

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Karen Angelini, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: September 21, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

On September 6, 2011, relator filed a petition for writ of mandamus, seeking to compel

the trial court to rule on his pro se motion and amended motions to dismiss counsel. However, in

order to be entitled to mandamus relief, 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 1 This proceeding arises out of Cause Nos. 2009-CR-11035, 2009-CR-12612, 2010-CR-1243, and 2010-CR-10019 styled State of Texas v. Jeffrey Clay Milward, in the 175th Judicial District Court, Bexar County, Texas, the Honorable Mary D. Roman presiding. 04-11-00619-CR

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 motions 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, relator asserts he filed his motions in

July and August. We cannot say the motions have awaited disposition for an unreasonable

amount of time. 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

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