in Re Jerry W. Wigfall ( 2010 )

Opinion issued December 16, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-01008-CR

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IN RE JERRY WIGFALL, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Jerry Wigfall, has filed a pro se petition for writ of mandamus, asking this court to direct respondent* to rule on his “Amended Motion to Reduce Third Degree Felony to Misdemeanor” and his motion to dismiss his court-appointed attorney.  We deny the petition for writ of mandamus.

          To establish that the trial court abused its discretion by failing to rule, a relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform that act, and (3) failed or refused to do so.  Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). Specifically, the relator must show that the trial court received the motion, was aware of it, and was asked to rule on the motion. Id. Here, relator has not provided us with a record showing that the trial court received his motions, was aware of them, was asked to rule, and refused to rule. See id.

          Relator’s petition does not meet the requirements of the Texas Rules of Appellate Procedure. See, e.g., Tex. R. App. P. 52.3(k) (requiring certified or sworn copy of any order complained of or any other document showing matter complained of).

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish.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

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*           Respondent is The Honorable Mark Kent Ellis of the 351st District Court, Harris County, Texas.