                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00099-CV




              IN RE: TOMMY PERKINS




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                      MEMORANDUM OPINION
       Relator, Tommy Perkins, has filed a petition for writ of mandamus. Perkins’ application

concerns his request for the trial court to enter a Judgment Nunc Pro Tunc. We deny the

requested relief.

       It is the relator’s burden to show entitlement to the relief being requested. See TEX. R.

APP. P. 52.3; In re Houstonian Campus, L.L.C., 312 S.W.3d 178, 187 (Tex. App.—Houston

[14th Dist.] 2010, orig. proceeding). Relator must file with the petition a certified, sworn copy

of every document that is material to relator’s claim for relief and that was filed in any

underlying proceeding and a properly-authenticated transcript of any relevant testimony from

any underlying proceeding, including any exhibits offered in evidence, or a statement that no

testimony was adduced in connection with the matter complained of. TEX. R. APP. P. 52.7(a).

       Mandamus issues only when the mandamus record establishes (1) a clear abuse of

discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate

remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); see In re

Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig.

proceeding). The Texas Supreme Court has adopted a balancing test to determine whether a

party has an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

136 (Tex. 2004) (orig. proceeding); In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (orig.

proceeding). Relator must establish that the trial court (1) had a ministerial duty to perform the

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). Due to the nature of this remedy, it
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is Perkins’ burden to properly request and show entitlement to the mandamus relief. Barnes v.

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

curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the

extraordinary relief he seeks.”).

           The prayer in Perkins’ application for mandamus relief simply asks that the application

be granted and the trial court be ordered to “continue with relief requested.” Reading the

application for context, we glean that Perkins claims: he was indicted on three counts—two of

capital murder and one of murder—in 1993; before trial the State abandoned one count of capital

murder and the murder count; Perkins was convicted of capital murder. 1 Perkins complains that

the same records at the Texas Department of Criminal Justice (TDCJ) still contain the abandoned

indictment counts; and apparently the motion for a Judgment Nunc Pro Tunc sought to have the

trial court order the TDCJ to expunge any record that agency had of those two abandoned

indictment counts. 2

           Perkins’ application includes a copy of a document styled “Nunc Pro Tunc With Order,”

but this document does not have a file-stamp or bear any indication it is a copy of a document

actually filed with and presented to the trial court. 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). However, the moving party must show that the trial court received, was

aware of, and was asked to rule on the motion. In re Grulkey, No. 14-10-00450-CV, 2010 Tex.

1
    See Perkins v. State, 887 S.W.2d 222 (Tex. App.—Texarkana 1994, pet. ref’d).
2
 Perkins moved unsuccessfully for expunction in the trial court in February 2009. See In re Perkins, No. 06-12-
00088-CV, 2012 Tex. App. LEXIS 8212 (Tex. App.— Texarkana Sept. 28, 2012, pet. dism’d w.o.j.) (mem. op.).
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App. LEXIS 4118, at *1 (Tex. App.—Houston [14th Dist.] May 28, 2010, orig. proceeding)

(mem. op.) (per curiam) (citing In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo

2003, orig. proceeding)); see also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana

2008, orig. proceeding) (“Showing that a motion was filed with the court clerk does not

constitute proof that the motion was brought to the trial court’s attention or presented to the trial

court with a request for a ruling.”).

       Perkins has failed in his obligation to provide this Court with a sufficient record

establishing his right to mandamus relief. He has provided no file-marked copies of the motions

he purports to have filed with the trial court; he has alleged no dates upon which such motions

were filed; and he has provided nothing to this Court showing these motions were presented to

and brought to the attention of the trial court.

       We deny the petition for writ of mandamus.




                                                       Jack Carter
                                                       Justice
Date Submitted:        October 15, 2013
Date Decided:          October 16, 2013




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