in Re Charles R. Blakes Jr v. State ( 2010 )

Opinion issued October 14, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00818-CR

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IN RE CHARLES R. BLAKES, JR., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Charles R. Blakes, Jr., has filed a petition for writ of mandamus, asking this court to direct respondent* to “hear all the Defendant’s motions filed in his behalf, either by counsel or by himself and to grant all motions that are not deemed frivolous.”  We deny the petition for writ of mandamus.

          Relator’s petition does not meet the requirements of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 9.5 (requiring that certified copy be served on respondent); 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).

          In addition, to establish that the trial court abused its discretion by failing to rule, the 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, a relator must show that the trial court received the motion, was aware of it, and was asked to rule on the motion. Id. Relator has not provided us with a record showing that the trial court received his motion, was aware of it, was asked to rule on it, and refused to rule. See id.

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Alcala and Massengale.

Do not publish.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

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*           Respondent is the Honorable David Mendoza of the 178th District Court, Harris County, Texas.