NUMBER 13-13-00009-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE ENRIQUE AMAYA RAMIREZ JR.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza1
Relator, Enrique Amaya Ramirez Jr., a pro se inmate, has filed a petition for writ
of mandamus in which he argues that the presiding judge of the trial court abused
relator’s discretion, leaving him without an adequate appellate remedy, by failing to
grant, or at least rule upon, his motion requesting shock probation. We will deny the
petition.
It is relator’s burden to properly request and show entitlement to mandamus
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See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions), 52.8(d) (“When
denying relief, the court may hand down an opinion but is not required to do so.”).
relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself
entitled to the extraordinary relief he seeks.”). Relator must furnish, inter alia, an
appendix or record sufficient to support the claim for mandamus relief. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see TEX. R. APP.
P. 52.3(k) (specifying the required contents for the appendix), 52.7(a) (specifying the
required contents for the record). Moreover, relator must certify that he has reviewed
the petition and concluded that every factual statement in the petition is supported by
competent evidence included in the appendix or record. See TEX. R. APP. P. 52.3(j).
To obtain mandamus relief for the refusal to rule, a relator must establish: (1) the
motion was properly filed and has been pending for a reasonable time; (2) the relator
requested a ruling on the motion; and (3) the trial court refused to rule. See In re
Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding). 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 Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig.
proceeding).
The Court is of the opinion that relator has not shown himself entitled to
mandamus relief, for several reasons. First, relator has not provided the Court with a
record or appendix showing that he filed the motion with the trial court or asked the trial
court to rule on the motion. See TEX. R. APP. P. 52.7(a)(1); In re Sarkissian, 243 S.W.3d
at 861. Second, even if we were to accept relator’s allegations as true, relator has
offered no legal authority or evidence showing that the alleged delay in ruling
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constitutes an unreasonable period of time for the trial court to consider the motion.
Third, even if we were to agree that relator is entitled to mandamus relief to compel the
trial court to rule on his motion, we would not direct the trial court to rule on the motion
in a certain way. See In re Blakeney, 254 S.W.3d at 661. Finally, relator cannot show
an abuse of discretion because the decision whether to grant shock probation is
committed to the discretion of the trial court. See TEX. CODE CRIM. PROC. ANN. art.
42.12, § 6 (West Supp. 2011).
Having reviewed and fully considered relator’s petition, we conclude that relator
has not shown himself entitled to the relief sought. Accordingly, the petition for writ of
mandamus is DENIED.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
10th day of January, 2013.
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