in Re Benito Sanchez, Relator ( 2011 )

MEMORANDUM OPINION
No. 04-11-00798-CR
IN RE Benito G. SANCHEZ
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 23, 2011
PETITION FOR WRIT OF MANDAMUS DENIED
On November 7, 2011, relator filed a petition for writ of mandamus, seeking to compel
the trial court to rule on his pro se motions for judgment nunc pro tunc. However, in order to be
entitled to mandamus relief, relator must establish that the trial court: (1) had a legal duty to
perform a non-discretionary act; (2) was asked to perform the act; and (3) failed or refused to do
so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding). When
a properly filed motion is pending before a trial court, the act of giving consideration to and
ruling upon that motion is ministerial, and mandamus may issue to compel the trial judge to act.
See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig.
proceeding). However, mandamus will not issue unless the record indicates that a properly filed
1
This proceeding arises out of Cause No. 2011-CR-2233W, styled State of Texas v. Benito G. Sanchez, in the 437th
Judicial District Court, Bexar County, Texas, the Honorable Lori I. Valenzuela presiding.
04-11-00798-CR
motion has awaited disposition for an unreasonable amount of time. See id. Relator has the
burden of providing this court with a record sufficient to establish his right to mandamus relief.
See TEX. R. APP. P. 52.7(a) (“Relator must file with the petition [ ] a certified or sworn copy of
every document that is material to the relator’s claim for relief and that was filed in any
underlying proceeding”); see also TEX. R. APP. P. 52.3(k)(1)(A); Walker v. Packer, 827 S.W.2d
833, 837 (Tex. 1992).
Here, relator has not provided this court with a file-stamped copy of his motions or any
other documents to show that a properly filed motion is pending before the trial court and has
been brought to the trial court’s attention. Additionally, relator asserts he filed his motions on
October 5, 2011 and October 27, 2011. We cannot say the motions have awaited disposition for
an unreasonable amount of time. See id. Based on the foregoing, we conclude relator has not
shown himself entitled to mandamus relief. Accordingly, relator’s petition for writ of mandamus
is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM
DO NOT PUBLISH
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