                                 NUMBER 13-13-00467-CR

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                                IN RE JOSE LUIS AGUILAR


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Perkes
                   Memorandum Opinion Per Curiam1

        Relator, Jose Luis Aguilar, proceeding pro se, filed a petition for writ of

mandamus on August 23, 2013. Through this original proceeding, relator seeks to

compel the trial court to conduct a hearing and rule on a motion for nunc pro tunc

judgment which relator allegedly filed on or about March 25, 2013. We deny the petition

for writ of mandamus.




        1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so. When granting relief, the court must hand down an opinion as in any other case.”);
see id. R. 47.4 (distinguishing opinions and memorandum opinions).
                                 I. STANDARD OF REVIEW

      To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied.     State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

      A remedy at law, though it technically exists, "may nevertheless be so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645,

648–49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled

must be a ministerial act that does not involve a discretionary or judicial decision. State

ex rel. Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the

relator can show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d

at 122. A clear right to relief is shown when the facts and circumstances dictate but one

rational decision "under unequivocal, well-settled (i.e., from extant statutory,

constitutional, or case law sources), and clearly controlling legal principles." Bowen v.

Carnes, 343 S.W.3d 805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks,

391 S.W.3d at 122. Consideration of a request or motion that is properly filed and

before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128

(Tex. Crim. App.1987) (orig. proceeding).




                                            2
                                  II. BURDEN OF PROOF

      It is the relator’s burden to properly request and show entitlement to mandamus

relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re

Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see

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

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks.”). In addition to other requirements, the

relator must include a statement of facts supported by citations to “competent evidence

included in the appendix or record,” and must also provide “a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must also file an

appendix and record sufficient to support the claim for mandamus relief. See id. R.

52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the

required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney,

254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).

                                      III. ANALYSIS

      As a preliminary matter, we first note that relator mistakenly denominated his

petition for writ of mandamus as pertaining to the appellate cause number in which we

considered relator’s direct appeal. See Aguilar v. State, No.13-13-00467-CR, 2011 Tex.

App. LEXIS 2351, at **1–6 (Tex. App.—Corpus Christi Mar. 31, 2011, pet. denied)

(mem. op.) (not designated for publication) (affirming relator’s conviction for one count

of aggravated sexual assault of a child, a first-degree felony, and one count of




                                           3
indecency with a child, a second-degree felony).            Because this is an original

proceeding, we instead consider the petition in this new and separate cause number.

       Second, relator identified the Honorable Michael E. Welborn as the respondent in

this original proceeding. However, the Honorable Michael E. Welborn was sworn into

office as the District Attorney of the 36th Judicial District, which is comprised of Aransas

and San Patricio Counties, on February 6, 2013.          The Honorable Starr B. Bauer

became the Presiding Judge of the 36th Judicial District by appointment on February

25, 2013. Relator alleges that he filed the motion for nunc pro tunc judgment at issue in

this proceeding on or about March 25, 2013 and accordingly, Judge Bauer would be the

respondent herein. See TEX. R. APP. P. 52.2.

       Third, relator filed a motion for leave of court to file the petition for writ of

mandamus. A motion for leave to file a petition for writ of mandamus is required when

relief is sought from the Texas Court of Criminal Appeals. See id. R. 72.1. However,

the Texas Rules of Appellate Procedure no longer require the relator to file a motion for

leave to file an original proceeding in the intermediate appellate courts. See generally

TEX. R. APP. P. 52 & cmt.; see also In re Salahuddin, No. 13-13-00135-CR, 2013 Tex.

App. LEXIS 2403, at *2 (Tex. App.—Corpus Christi Mar. 11, 2013, orig. proceeding)

(mem. op. per curiam) (not designated for publication). Accordingly, relator’s motion for

leave is dismissed as moot.

       Fourth, relator filed a declaration of indigency and a request to proceed as an

indigent.    Relator has supported his request by verification and supporting

documentation. We grant this request.




                                             4
       Fifth, relator filed a “Special Notice to and Request of the Court” in which he

requests that his pleadings be construed liberally because he is proceeding pro se, is

not educated in the field of law, and has limited access to the prison law library. Given

the applicable standard of review, we deny this request. See Barnes, 832 S.W.2d at

426.

       Finally, we turn to the merits. Consideration of a motion that is properly filed and

before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128

(Tex. Crim. App. 1987) (orig. proceeding).       To obtain mandamus relief for the trial

court’s refusal to rule on a motion, a relator must establish: (1) the motion was properly

filed and has been pending for a reasonable time; (2) the relator requested a ruling on

the motion; and (3) the trial court refused to rule. In re Sarkissian, 243 S.W.3d 860, 861

(Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex.

App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex.

App.—Waco 2003, orig. proceeding).          The relator must show that the trial court

received, was aware of, and was asked to rule on the motion. In re Blakeney, 254

S.W.3d at 661; In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig.

proceeding).

       Relator has not included with his petition for writ of mandamus any

documentation showing that the motion for nunc pro tunc judgment was properly filed,

that it had been pending for a reasonable time, that relator requested a hearing on the

motion, and that the trial court refused to conduct a hearing and issue a written order on

the motion.    In the instant case, relator has not furnished an appendix or record

sufficient to support his claim for relief. See generally TEX. R. APP. P. 52.3.



                                             5
                                   IV. CONCLUSION

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

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Relator’s

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


                                              PER CURIAM

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 3rd
day of September, 2013.




                                          6
