IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 31, 2005
______________________________
IN RE MICHAEL SCOTT, RELATOR _______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONRelator Michael Scott, acting pro se, seeks a writ of mandamus directing respondent, the Honorable Pat Pirtle, Judge of the 251st District Court of Potter County, to rule on a discovery sanctions motion. We deny relief.
Relator has filed with the clerk of this court a pleading entitled Petition for Writ of Mandamus. He alleges that he has filed a motion for sanctions in cause number 90,231-C in the 251st District Court; he has filed a request that the district clerk present the motion to the court for ruling; and that respondent has failed to rule on the motion. We are requested to direct respondent to rule.
In support of the petition for writ of mandamus, relator attached hand-written documents which he declares, under penalty of perjury, are true and correct copies of the original documents. The documents, however, do not demonstrate file-marks or copies of file marks and are not certified by the Potter County clerk as copies of documents which have been filed.
When petition for writ of mandamus is made, it is the relator's burden to show entitlement to the relief being requested. See generally Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Relator must file with the petition a certified sworn copy of every document that is material to relator's claim for relief that was filed in any underlying proceeding, and a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter complained of. Tex. R. App. P. 52.7(a).
Moreover, relators seeking issuance of writ of mandamus must satisfy three requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). A court is not required to consider a motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001) (orig. proceeding).
Relator has not attached certified, sworn copies of motions and correspondence referenced in the petition. Relator has not shown that demand has been made upon respondent or that respondent has been made aware of relator's alleged motion or request for action on the alleged motion, or that respondent has refused to act. Relator has not presented a record which shows entitlement to the relief sought, or upon which we are authorized to act.
The petition for writ of mandamus is denied.
Phil Johnson
Chief Justice
r, (2) but the offense was dismissed in exchange for his guilty plea to aggravated robbery.
The State presented punishment evidence, and although appellant testified at the adjudication phase, he did not present any other evidence during the punishment phase. Following imposition of the 40-year sentence by the trial court, appellant stated, "I can't believe a man can come in here and in 30 minutes, and something's [sic] that's taken over 14 years and he and [sic] I get punished this way." No objection, however, was lodged to the trial court's sentence.
Assuming, arguendo, that appellant's comment can be interpreted as preserving a complaint of the trial court's decision, assessment of punishment is within the discretion of the trial court. A sentence imposed within the range of punishment established by the Legislature will not be disturbed on appeal. Flores v. State, 936 S.W.2d 478, 478-79 (Tex.App.-Eastland 1996, pet. ref'd). Aggravated robbery is a first degree felony. See Tex. Pen. Code Ann. § 29.03(b). Burglary of a habitation is also a first degree felony. See § 30.02(d). A first degree felony carries a sentence of life or any term of not more than 99 years or less than 5 years. § 12.32(a). We conclude the trial court did not abuse its discretion in assessing punishment at 40 years confinement. Issues one through four are overruled.
Accordingly, the judgments of the trial court are affirmed.
Don H. Reavis
Justice
Do not publish.
1. The Court held that a trial judge must check the box on the certification form indicating the case "is not a plea-bargain case, and the defendant has the right of appeal." Hargesheimer, 182 S.W.3d at 913. However, article 42.12, section 5(b) of the Texas Code of Criminal Procedure will continue to prohibit the appeal of the trial court's decision to adjudicate guilt. Id.
2. The officer could not recall the exact charge and did not have the warrant before him.