in Re: Lee Arthur Wynn

• Court: Court of Appeals of Texas
• Decided: July 16, 2018
• Docket: 05-18-00776-CV
• Status: Published

Opinion

Denied and Opinion Filed July 16, 2018

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00776-CV

IN RE LEE ARTHUR WYNN, Relator

Original Proceeding from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F12-24938H

MEMORANDUM OPINION Before Justices Lang-Miers, Fillmore, and Stoddart Opinion by Justice Stoddart Before the Court is relator’s July 6, 2018 petition for writ of mandamus in which he seeks

a writ directing the trial court to hold a hearing on a nunc pro tunc motion purportedly filed by

relator. A trial court has a ministerial duty to rule upon a properly filed and timely presented

motion. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig.

proceeding). To establish entitlement to mandamus relief for a trial court’s refusal to act, the

relator must establish that the trial court had a legal duty to perform a ministerial act, relator made

demand for performance, and the court refused to perform. Stoner v. Massey, 586 S.W.2d 843,

846 (Tex. 1979) (orig. proceeding); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio

2003, orig. proceeding). As the party seeking relief, the relator has the burden of providing the

Court with a sufficient mandamus record to establish his right to mandamus relief. Lizcano v.

Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring);

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Relator has not met these requirements and is not entitled to mandamus relief. The

mandamus record before us does not include a certified or sworn copy of the trial court’s docket

sheet or other proof that establishes relator filed the complained-of motions, relator requested

either a hearing or a ruling, and the trial court has failed to rule on relator’s motions. See TEX. R.

APP. P. 52.3(k)(1)(a), 52.7(a). Accordingly, we deny relator’s petition for writ of mandamus.

/Craig Stoddart/ CRAIG STODDART JUSTICE

180776F.P05

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