in Re: Jaime Luevano ( 2006 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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                                                                              )     No.  08-06-00085-CR

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IN RE:  JAIME LUEVANO                                  )     AN ORIGINAL PROCEEDING

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                                                                              )                 IN MANDAMUS

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OPINION ON PETITION FOR WRIT OF MANDAMUS

Jaime Luevano has filed a pro se petition for writ of mandamus, seeking an order compelling the Honorable Angelica Barill, Judge of the 346th District Court of El Paso County, Texas and the Honorable Robert Anchondo, Judge of the County Criminal Court at Law No. 2 of El Paso County, Texas to rule on his motions to withdraw his plea, motion for copy of judgment and sentence, motion for new trial, and his motion for reduction of sentence, respectively.  To obtain mandamus relief in a criminal matter, the relator must establish:  (1) the act sought to be compelled is ministerial; and (2) there is no adequate remedy at law.  Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987)(orig. proceeding). Relator has the burden for providing a record sufficient to establish his right to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)(orig. proceeding); In re Bates, 65 S.W.3d 133, 135 (Tex.App.--Amarillo 2001, orig. proceeding).

From the record before us, we cannot determine whether the said motions were properly filed with the trial courts or that the trial courts received and were made aware of the motions.  See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig. proceeding)(filing the matter with the district clerk was not sufficient to impute knowledge of the pleading such that the trial court was made aware of it); Barnes v. State, 832 S.W.2d 424, 426-27 (Tex.App.--Houston [1st Dist.] 1992, orig. proceeding)(relator must show that motion was brought to the trial court=s attention and the court failed or refused to rule); cf. In re Daisy, 156 S.W.3d 922, 924 (Tex.App.--Dallas 2005, orig. proceeding)(granting mandamus relief where record contained several form letters from the trial court to relator giving various reasons why the court could not or would not rule on his motion).

Based on the record before us, we are unable to conclude that Relator is entitled to the relief requested.  We further deny Relator=s motion to expedite writ of mandamus and to amend writ as moot.  Accordingly, the petition for writ of mandamus is denied.

May 18, 2006

                                                                        DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)