in Re Eddie Brown, Jr. ( 2010 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 7, 2010.

In The

Fourteenth Court of Appeals

____________

NO. 14-10-00909-CR

____________

IN RE EDDIE BROWN, JR., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

            On September 22, 2010, relator filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asked this court to compel the Honorable Lonnie Cox, presiding judge of the 56th District Court of Galveston County, to remove his appointed counsel from his case.

            Relator does not claim to have filed a motion for appointment of new counsel and no such motion is attached to the petition for writ of mandamus.  To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.proceeding).  Consideration of a motion that is properly filed and before the court is a ministerial act.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (orig.proceeding) (op. on reh'g).  A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App. -- Waco 2003, orig. proceeding).  A relator must show that the trial court received, was aware of, and asked to rule on the motion.  In re Villarreal, 96 S.W.3d 708, 710 (Tex. App. -- Amarillo 2003, orig. proceeding). 

Absent a showing the trial court is aware of and been asked to rule on a motion, relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s petition for writ of mandamus.

                                                                        PER CURIAM

Panel consists of Justices Seymore, Boyce, and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).