                               NUMBER 13-11-00623-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

                                  IN RE JOSE VILLELA


                         On Petition for Writ of Mandamus.


                           MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Benavides
                   Memorandum Opinion Per Curiam1

       Relator, Jose Villela, has filed a petition for writ of mandamus alleging that the

Honorable Tom Greenwell, presiding judge of the 319th Judicial District Court of Nueces

County, Texas, abused his discretion by failing to rule on a “Petition for Factual Records”

and a “DNA Motion” filed by relator.

       For purposes of establishing that the trial court has abused its discretion in failing

to rule on a motion, the complainant must establish that the trial court: (1) had a legal

       1
          See TEX. R. APP. P. 52.8(d) (“When denying [mandamus] relief, the court may hand down an
opinion but is not required to do so.”).
duty to perform a nondiscretionary 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); see In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.

proceeding).

       Relator asserts that more than ninety days have passed since he filed the subject

motions.   However, relator has not provided us with a record establishing that his

motions were properly filed, or that the trial court was asked and failed to rule on them.

Without such a record, we cannot conclude that the trial court abused its discretion. See

In re Molina, 94 S.W.3d at 886; In re Chavez, 62 S.W.3d at 228.

       Having reviewed and fully considered relator’s petition, this Court is of the opinion

that relator has not shown himself entitled to the relief requested and that the petition

should be denied. See TEX. R. APP. P. 52.8(a). Accordingly, relator’s petition for writ of

mandamus is DENIED.


                                                        PER CURIAM

Do Not Publish.
See TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of October, 2011.




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