in Re Roberto Gomez Fernandez

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00258-CV

In re Roberto Gomez Fernandez

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator Roberto Gomez Fernandez, an inmate, has filed a pro se petition for writ of

mandamus in this Court. See Tex. Gov’t Code § 22.221. In the petition, Fernandez asks this Court

to compel the presiding judge of the 167th Judicial District Court of Travis County to answer his

request for a judgment nunc pro tunc modifying his judgment of conviction. Tex. Code Crim. Proc.

art. 42.03 § 2(a).

Mandamus may issue to compel a trial court to respond to a motion for judgment

nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004). However, to

obtain mandamus relief compelling the trial court to rule on a motion, the relator must establish

that (1) a properly filed motion has been pending for unreasonable amount of time, (2) the matter

was brought to the attention of the trial court, and (3) the trial court failed or refused to rule on the

motion. In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding). Further,

it is the relator’s burden to properly request and show entitlement to mandamus relief. Walker

v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). In this regard, the relator must provide the reviewing

court with a record sufficient to establish his right to mandamus relief. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding); see Tex. R. App. P. 52.7(a)(1)

(requiring that relator file certified or sworn copy of every document material to claim for relief).

Here, Fernandez has not provided this Court with a file-stamped copy of his motion

for judgment nunc pro tunc or any other document showing that his motion has been properly filed.

Without this record, we cannot determine whether the motion was properly filed or, if it was, the

date on which it was received by either the clerk’s office or the judge. In addition, Fernandez has

not provided this Court with any record demonstrating that his motion for judgment nunc pro tunc

has been brought to the trial court’s attention or that a ruling was requested. See In re Blakeney,

254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (relator must show that

trial court was aware of and asked to rule on motion).

Because Fernandez has failed to demonstrate his right to relief, the petition for writ of

mandamus is denied.

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Filed: June 4, 2014