in Re Kevin J. Rezendes ( 2009 )

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MEMORANDUM OPINION

No. 04-09-00749-CR

IN RE Kevin J. REZENDES

Original Mandamus Proceeding     

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 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.     

            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).

PER CURIAM

DO NOT PUBLISH