in Re Ernesto Carraman, Relator ( 2011 )

MEMORANDUM OPINION
No. 04-11-00342-CR
IN RE Ernesto CARRAMAN
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: June 8, 2011
PETITION FOR WRIT OF MANDAMUS DENIED
On May 16, 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. 2011-CR-0260, styled State of Texas v. Ernesto Carraman, in the 290th
Judicial District Court, Bexar County, Texas, the Honorable Melissa Skinner presiding.
04-11-00342-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 May 9, 2011, just seven days 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 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).
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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