in Re Kevin J. Rezendes

• Court: Court of Appeals of Texas
• Decided: December 9, 2009
• Docket: 04-09-00749-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00749-CR

IN RE Kevin J. REZENDES

Original Mandamus Proceeding1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: December 9, 2009

PETITION FOR WRIT OF MANDAMUS DENIED

On November 20, 2009, relator Kevin Rezendes filed a petition for writ of mandamus,

complaining of the trial court’s failure to rule on his motion to disqualify his attorney. To obtain a

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). The record before us fails to establish relator is entitled

to the relief requested. Relator alleges Mr. James Tocci was appointed to represent him in the

underlying criminal proceeding and relator alleges he filed a motion to disqualify Mr. Tocci because

1 … This proceeding arises out of Cause No. 2009-CR-10097, styled State of Texas v. Kevin J. Rezendes, pending in the 290th Judicial District Court, Bexar County, Texas, the Honorable Sharon MacRae presiding. 04-09-00749-CR

counsel has failed to communicate with him. This court has been informed by the trial court clerk

that no attorney has yet been appointed to represent relator and no motions are pending in trial cause

number 2009-CR-10097.2

Accordingly, because relator has not met his burden of providing a record establishing that

a motion was properly filed and has awaited disposition for an unreasonable amount of time, he has

not provided this court with grounds to usurp the trial court’s inherent authority to control its own

docket. See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding).

Accordingly, relator’s petition for writ of mandamus is denied. TEX . R. APP . P. 52.8(a).

DO NOT PUBLISH

2 … W e note James Tocci has been appointed to represent the relator in a different matter in trial cause number 2009-CR-4467 pending in Bexar County.

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