in Re Richard Padilla, Relator

Opinion

MEMORANDUM OPINION No. 04-12-00087-CR

IN RE Richard PADILLA

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: February 29, 2012

PETITION FOR WRIT OF MANDAMUS DENIED

On February 8, 2012, relator filed a petition for writ of mandamus, seeking to compel the

trial court to rule on his pro se motion for speedy trial and/or motion to dismiss. 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 No. 2007-CR-4263 & 2007-CR-4264, styled State of Texas v. Richard Padilla, in the 399th Judicial District Court, Bexar County, Texas, the Honorable Juanita A. Vasquez-Gardner presiding. 04-12-00087-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 does not indicate when his motion was filed nor does he provide this court

with a file stamped copy of the motion 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. 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).

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

Mandamus. No leave is required to file a petition for 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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