in Re Kim Wayne Burden

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00111-CR
IN RE KIM WAYNE BURDEN
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
Kim Wayne Burden petitioned for writ of mandamus asking this Court to compel the trial
judge of the 8th Judicial District Court of Delta County, Texas, to rule on her motion for a copy
of the trial court’s record. Because Burden failed to provide us with a record to support her
entitlement to mandamus relief, we deny her petition for writ of mandamus.
To be entitled to mandamus relief, the relator must show (1) that she has no adequate
remedy at law and (2) that the action she seeks to compel is ministerial, not one 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). The relator has
“the burden of providing this Court with a sufficient record to establish [her] right to mandamus
relief.” Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); see In re
Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig.
proceeding); see also T EX. R. APP. P. 52.3. Before mandamus may issue, the relator must show
that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or
refused to act. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig.
proceeding).
Burden’s petition includes a file-stamped copy of her motion and a copy of an unsworn
and uncertified letter to the district clerk dated July 4, 2020, asking about the motion. That said,
the petition does not come with any proof that she brought this matter to the attention of the trial
court, as is required. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008,
orig. proceeding). “Showing that a motion was filed with the court clerk does not constitute
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proof that the motion was brought to the trial court’s attention or presented to the trial court with
a request for a ruling.” Id.; see also TEX. R. APP. P. 52.3(k). We, therefore, cannot determine
whether this matter was presented to the trial court. See Blakeney, 254 S.W.3d at 662. It is the
relator’s burden to provide this Court with a sufficient record to establish the right to mandamus
relief. See T EX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1). Here, the record is inadequate to grant
mandamus relief.
For these reasons, we deny Burden’s petition for writ of mandamus.
Scott E. Stevens
Justice
Date Submitted: October 28, 2020
Date Decided: October 29, 2020
Do Not Publish
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