MEMORANDUM OPINION
No. 04-11-00426-CR
IN RE Donald Ray MCINTOSH
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 6, 2011
PETITION FOR WRIT OF MANDAMUS DENIED
On June 21, 2011, relator filed a petition for writ of mandamus, seeking to compel the
trial court to rule on his pro se motion for speedy trial, motion for examining trial, motion in
limine, discovery motion, and motion for self-representation.
With regard to relator’s complaint that the trial court has failed to rule on his pro se
motion for self-representation, 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.
1
This proceeding arises out of Cause No. 2009-CR-12304, styled State of Texas v. Donald Ray McIntosh, pending
in the 379th Judicial District Court, Bexar County, Texas, the Honorable Ron Rangel presiding.
04-11-00426-CR
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 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 for self-
representation or any other documents to show that a properly filed motion has been pending
before the trial court for an unreasonable amount of time. Therefore, we conclude relator has
failed to meet his burden. See id.
With regard to the remaining pro se motions relator complains the trial court has failed to
rule on, counsel has been appointed to represent relator in the criminal proceeding pending in the
trial court for which he is currently confined. A criminal defendant is not entitled to hybrid
representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v.
State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). A trial court has no legal duty to rule on
pro se motions or petitions filed with regard to a criminal proceeding in which the defendant is
represented by counsel. See Robinson, 240 S.W.3d at 922. Consequently, the trial court did not
abuse its discretion by declining to rule on relator’s pro se motions filed in the criminal
proceeding pending in the trial court.
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04-11-00426-CR
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
-3-
in Re Donald Ray McIntosh, Relator
Combined Opinion