                                  MEMORANDUM OPINION
                                          No. 04-11-00181-CR

                              IN RE John Christopher MCELHATTEN

                                    Original Mandamus Proceeding 1

PER CURIAM

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: April 6, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

           On March 7, 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 and “petition for writ of

habeas corpus excessive bail.”

           With regard to the pro se “petition for writ of habeas corpus excessive bail,” counsel has

been appointed to represent relator in the criminal proceeding pending in the trial court for which

he is currently confined. 2 A criminal defendant is not entitled to hybrid representation. See

Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d

481, 498 (Tex. Crim. App. 1995). A trial court has no legal duty to rule on pro se motions or


1
  This proceeding arises out of Cause No. 2010-CR-10992 & 2010-CR-10993, styled State of Texas v. John
Christopher McElhatten, pending in the 437th Judicial District Court, Bexar County, Texas, the Honorable Lori
Valenzuela presiding.
2
  Attorney Wayne Huff was appointed to represent relator in the trial court proceeding.
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petitions filed with regard to a criminal proceeding in which the defendant is represented by

counsel. See Robinson, 240 S.W.3d at 922. Consequently, the trial court did not abuse its

discretion by declining to rule on relator’s pro se motion filed in the criminal proceeding pending

in the trial court.

        With regard to relator’s complaint that the trial court has failed to rule on his pro se

motion to dismiss appointed counsel, 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 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.

Additionally, relator asserts he filed his motion to dismiss appointed counsel on March 3, 2011,

just four days before relator’s petition for writ of mandamus was filed in this court. Relator has




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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).

                                                                   PER CURIAM


DO NOT PUBLISH




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