IN RE: MARIO RODRIGUEZ

Reset A A Font size: Print

Court of Appeals of Texas, Dallas.

IN RE: MARIO RODRIGUEZ, Relator

No. 05-17-00184-CV

Decided: February 24, 2017

Before Justices Francis, Evans, and Whitehill

MEMORANDUM OPINION

Before the Court is relator's February 21, 2017 petition for writ of mandamus in which he asks the Court to order the trial court to hear and rule on his motion for bench warrant and motion for speedy trial.

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 motions are 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, e.g., In re Dong Sheng Huang, 491 S.W.3d 383, 385–86 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); see also In re Florence, No. 14-11-00096-CR, 2011 WL 553241, at *1 (Tex. App.—Houston [14th Dist.] Feb. 17, 2011, orig. proceeding) (mem. op.).

We deny the petition for writ of mandamus.

MOLLY FRANCIS JUSTICE