in Re Juan Guzman Zuniga

• Court: Court of Appeals of Texas
• Decided: March 11, 2009
• Docket: 04-09-00114-CR
• Status: Published

Opinion

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MEMORANDUM OPINION

No. 04-09-00114-CR

IN RE Juan Guzman ZUNIGA

Original Mandamus Proceeding1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: March 11, 2009

PETITION FOR WRIT OF MANDAMUS DENIED

On February 23, 2009, relator Juan Guzman Zuniga filed a petition for writ of mandamus,

complaining of the trial court’s failure to rule on two motions concerning his requests for records.

To obtain a petition for writ of mandamus compelling the trial court to consider and rule on a

motion, a 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

… This proceeding arises out of Cause No. 2006-CR-5239, styled State v. Juan Guzman Zuniga, in the 1

186th Judicial District Court, Bexar County, Texas, the Honorable Maria Teresa Herr presiding. 04-09-00114-CR

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, 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 support his claim for relief. Nor has relator established that the trial court has been

made aware of his motions or has expressly refused to rule on them. See In re Isbell, No. 04-06-

00558-CV, 2006 WL 3206075, at *2 (Tex. App.—San Antonio November 8, 2006, orig. proceeding)

(mem. op.). We conclude that relator has not shown himself entitled to mandamus relief.

Accordingly, the petition is denied. TEX . R. APP . P. 52.8(a).

Additionally, relator filed an Application for Leave to File Petition for Writ of Mandamus.

No leave is required to file a petition for a writ of mandamus in this court. TEX . R. APP . P. 52.

Therefore, relator’s motion for leave to file is denied as moot.

DO NOT PUBLISH

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