in Re Richard Morris, Relator

MEMORANDUM OPINION
No. 04-11-00302-CR
IN RE Richard A. MORRIS
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: May 11, 2011
PETITION FOR WRIT OF MANDAMUS DENIED
On April 25, 2011, relator filed a petition for writ of mandamus, seeking to compel the
trial court to rule on his pro se motion to dismiss appointed counsel. 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. 2010-CR-11681, styled State of Texas v. Richard A. Morris, in the 290th
Judicial District Court, Bexar County, Texas, the Honorable Melisa Skinner presiding.
04-11-00302-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 motion 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 motion to
dismiss appointed counsel on March 1, 2011, less than two months before relator’s petition for
writ of mandamus was filed in this court. Relator has failed to meet his burden that a properly
filed motion has awaited disposition for an unreasonable amount of time. See Safety-Kleen
Corp., 945 S.W.2d at 269. 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).
Additionally, relator filed an Application for Leave to File Petition for Writ of
Mandamus. No leave is required to file a petition for writ of mandamus in this court. TEX. R.
APP. P. 52. Therefore, relator’s motion for leave to file is DENIED as moot.
PER CURIAM
DO NOT PUBLISH
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