MEMORANDUM OPINION
No. 04-12-00048-CR
IN RE David BENAVIDEZ
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: February 8, 2012
PETITION FOR WRIT OF MANDAMUS DENIED
On January 23, 2012, relator filed a petition for writ of mandamus, seeking to compel the
trial court to rule on his pro se “Motion to Enter Judgment and Sentence Nunc Pro Tunc.”
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
1
This proceeding arises out of Cause No. 09-08-00070-CRF, styled State of Texas v. David Benavidez, in the 218th
Judicial District Court, Frio County, Texas, the Honorable Donna Rayes presiding.
04-12-00048-CR
that a properly filed 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 asserts he filed his motion on December 19, 2011. However, he has not
provided this court with a file stamped copy of the 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, even if relator’s motion has been pending since December 19, 2011, we
cannot say the motion has awaited disposition for an unreasonable amount of time. 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).
PER CURIAM
DO NOT PUBLISH
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