in Re: Charlie Puentes ( 2016 )

Denied and Opinion Filed November 8, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01268-CV
No. 05-16-01270-CV
IN RE CHARLIE PUENTES, Relator
Original Proceeding from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause Nos. 004-83427-2015 and 004-83429-2015
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Francis
Before the Court is relator’s October 25, 2016 petition for writ of mandamus in which he
asks the Court to order the trial court to rule on his motion for speedy trial and motion for bench
warrant. Also before the Court is relator’s October 25, 2016 motion for leave to file petition for
writ of mandamus.
To be entitled to mandamus relief in a criminal case, 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).
A defendant seeking to compel the dismissal of an indictment or complaint on speedy trial
grounds has an adequate remedy at law, and therefore, is not entitled to mandamus relief. Smith
v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998). Accordingly, relator is not entitled to
mandamus relief as to his request for a speedy trial because he has an adequate remedy on
appeal.
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). 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); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003,
orig. proceeding). It is relator’s burden to provide the court with a record sufficient to establish
his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992); TEX. R. APP. P. 52.3(k),
52.7(a). Here, the record is insufficient to establish that the motions for which relator seeks a
ruling were properly filed, that the trial court was requested to rule, and that the trial court
refused to rule. Although relator attaches copies of a motion for speedy trial and a motion for
bench warrant, the motion for speedy trial is not file-stamped and he includes no evidence
showing that he has requested the trial court to rule on the motions. Absent proof that the trial
court has been requested to rule on the motions, relator has not established his entitlement to the
extraordinary relief of a writ of mandamus. See In re Florence, 14-11-00096-CR, 2011 WL
553241, at *1 (Tex. App.—Houston [14th Dist.] Feb. 17, 2011, no pet.).
Accordingly, we deny the petition for writ of mandamus. We also deny relator’s motion
for leave to file the petition for writ of mandamus as moot.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
161268F.P05
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