                                    NUMBER 13-09-00152-CV

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                                      IN RE: OSCAR DAVILA


                             On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

                 Before Justices Yañez, Rodriguez, and Benavides
                        Per Curiam Memorandum Opinion1

            Relator, Oscar Davila, pro se, filed a petition for writ of mandamus seeking relief

from orders directing the withdrawal of funds from relator’s inmate trust account.2 The

Court requested, but did not receive, a response from real party in interest, the State of

Texas, acting by and through the office of the Cameron County District Attorney.

        The Court, having examined and fully considered the petition for writ of mandamus,

is of the opinion that relator has not shown himself entitled to the relief sought. Mandamus

        1
          See T EX . R . A PP . P . 5 2 .8 (d ) (“W he n denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).

        2
          This cause was originally docketed in this Court as a crim inal m atter. See In re Davila, No.
13-07-00706-CR, 2009 Tex. App. LEXIS ___, at *1 (Tex. App.–Corpus Christi Mar. 19, 2009, orig. proceeding)
(per curiam ) (m em . op., not designated for publication).
relief is proper only to correct a clear abuse of discretion when there is no adequate

remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.

2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The relator has the burden

of establishing both prerequisites to mandamus relief. In re CSX Corp., 124 S.W.3d 149,

151 (Tex. 2003) (orig. proceeding). This burden is a heavy one. See In re Epic Holdings,

Inc., 985 S.W.2d 41 (Tex. 1998)

        In the instant case, relator has failed to meet this burden. The petition for writ of

mandamus and accompanying documents do not establish a clear abuse of discretion by

the trial court. See generally TEX . R. APP. P. 52.3(h), 52.3(k), 52.7. Moreover, relator has

not demonstrated that he lacks an adequate remedy by appeal. See In re Johnson, No.

AP-75,898, 2008 Tex. Crim. App. LEXIS 1628, at *22-23 (Tex. Crim. App. Oct. 29, 2008)

(orig. proceeding); Reed v. State, 269 S.W.3d 619, 627-28 (Tex. App.–San Antonio July

9, 2008, no pet.); Abdullah v. State, 211 S.W.3d 938, 940-41 (Tex. App.–Texarkana 2007,

no pet.); see also In re Bejaran, No. 13-08-00630-CV, 2008 Tex. App. LEXIS 8581, at *1-*3

(Tex. App.–Corpus Christi Nov. 12, 2008, orig. proceeding) (per curiam) (mem. op.).

       Further, to the extent that relator’s complaints concern the trial court’s alleged failure

to rule on relator’s “motion to compel,” we note that the record and appendix filed herein

do not contain the “motion to compel” or any documentation otherwise related to the trial

court’s receipt and consideration of that motion. See In re Hearn, 137 S.W.3d 681, 685

(Tex. App.–San Antonio 2004, orig. proceeding) (holding that a party who complains about

a trial court's refusal to hear or rule on a matter must show that the matter was brought to

the attention of the trial court and that the trial court failed or refused to rule); see also

Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig.

proceeding). The record currently before the Court fails to establish (1) the filing date for


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relator’s motion, (2) that relator has called the trial court's attention to his motion or

requested that a hearing be set to determine its merit, and (3) whether the trial court has

had a reasonable time within which to rule but has failed or refused to do so. Therefore,

we cannot conclude that relator has shown any abuse of discretion by the trial court. See

In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding).

      The petition for writ of mandamus is DENIED. See TEX . R. APP. P. 52.8(a).

                                                       PER CURIAM



Memorandum Opinion delivered and filed
this the 19th day of March, 2009.




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