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                                  MEMORANDUM OPINION

                                           No. 04-10-00550-CR

                                    IN RE David CEPEDA JONES

                                    Original Mandamus Proceeding1

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 18, 2010

PETITION FOR WRIT OF MANDAMUS DENIED

           On July 27, 2010, relator David Cepeda Jones filed a petition for writ of mandamus,

complaining of the trial court’s removal of his previous counsel and the appointment of his new

counsel.

           However, in order to obtain a petition for writ of mandamus in a criminal proceeding, relator

must establish: (1) the act sought to be compelled is ministerial rather than discretionary in nature,

and (2) there is no adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542,

548 (Tex. Crim. App. 1987). To establish an act sought to be compelled is ministerial, relator must

demonstrate that the trial court: (1) had a legal duty to perform a non-discretionary act; (2) was asked


           1
         … This proceeding arises out of Cause No. 2009-CR-12902, styled State of Texas v. David Cepeda Jones,
pending in the 227th Judicial District Court, Bexar County, Texas, the Honorable Philip Kazen presiding.
                                                                                       04-10-00550-CR



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, 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 merely alleged the trial court improperly removed his previous counsel and

appointed him new counsel. Relator has failed to establish he has met any of the prerequisites

necessary to be entitled to mandamus relief. See In re Molina, 94 S.W.3d at 886; see also TEX . R.

APP . P. 52.7(a). Accordingly, the petition for writ of mandamus is denied. TEX . R. APP . P. 52.8(a).

                                                                       PER CURIAM

DO NOT PUBLISH




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