                                MEMORANDUM OPINION
                                        No. 04-11-00648-CR

                             IN RE John Christopher MCELHATTEN

                                  Original Mandamus Proceeding 1

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: September 28, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

           On September 6, 2011, relator filed a petition for writ of mandamus, seeking to compel

the trial court to rule on his pro se motion to dismiss appointed counsel. 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 that a properly filed
1
 This proceeding arises out of Cause Nos. 2010-CR-10992 and 2010-CR-10993, styled State of Texas v. John
Christopher McElhatten, in the 437th Judicial District Court, Bexar County, Texas, the Honorable Lori I.
Valenzuela presiding.
                                                                                   04-11-00648-CR


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 to

dismiss appointed counsel on September 1, 2011, just six days before relator’s petition for writ

of mandamus was filed in this court. 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).

       Additionally, relator filed an Application for Leave to File Petition for Writ of

Mandamus. No leave is required to file a petition for writ of mandamus in this court. TEX. R.

APP. P. 52. Therefore, relator’s motion for leave to file is DENIED as moot.

                                                                   PER CURIAM


DO NOT PUBLISH




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