MEMORANDUM OPINION
No. 04-11-00417-CR
IN RE Allen GRAHAM
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 13, 2011
PETITION FOR WRIT OF MANDAMUS DENIED
On June 16, 2011, relator filed a petition for writ of mandamus, seeking to compel the
trial court to rule on his pro se “Motion to Enter Judgement [sic] 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. 06-05-0132-CRA, styled State of Texas v. Allen Graham, in the 218th
Judicial District Court, Atascosa County, Texas, the Honorable Donna Rayes presiding.
04-11-00417-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 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 on
June 8, 2011, just eight days before relator’s petition for writ of mandamus was filed in this
court. Therefore, 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).
PER CURIAM
DO NOT PUBLISH
-2-