in Re Lawron Coleman ( 2008 )

Opinion issued June 13,2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00447-CR

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IN RE LAWRON COLEMAN, Relator

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Original Proceeding on Petition for Writ of Mandamus

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MEMORANDUM OPINION

Relator, Lawron Coleman, has filed a petition for writ of mandamus requesting that this Court compel respondent ⁽¹⁾ to rule on his "motion to set aside indictment" in trial court cause number 52757. We deny the petition.

First, there are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Although relator attached a copy of a file-marked motion, the motion is neither a sworn or certified copy. Additionally, relator has not provided this Court with a record that shows that the motion was brought to the attention of the respondent, or that a demand for performance was made and refused.

Second, relator's petition does not meet the requirements of the Texas Rules of Appellate Procedure. For example, it does not certify that a copy was served on respondent. See Tex. R. App. P. 9.5, 52.3(j). Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding).

The petition for writ of mandamus is denied.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Nuchia, Alcala, and Hanks.  

Do not publish. Tex. R. App. P. 47.2(b).

1.

Respondent is the Honorable Ogden Bass, Judge, 23rd District Court, Brazoria County.