

Opinion
issued August 3, 2010
 
 

 
In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00471-CR
———————————
IN RE FRANK
GARCIA, JR., Relator

 

 

Original Proceeding on Petition for Writ of Mandamus
 

 
MEMORANDUM OPINION
Relator, Frank Garcia, Jr., was
convicted by a jury of the offense of aggravated assault and sentenced to
confinement for 32 years.  On June 17,
1999, this Court issued an opinion affirming the trial court’s judgment.  Garcia v. State, 17 S.W.3d 1 (Tex.
App.CHouston [1st Dist.] Jun. 17, 1999, pet.
ref’d).  Our mandate issued on February
11, 2000.
          Relator has filed a pro se petition for writ of mandamus
complaining that the trial court entered a judgment nunc pro tunc and an order
of commitment nunc pro tunc on September 16, 2002 in trial court cause
number 29980C.[1]  Relator requests that this Court find the
orders entered by the trial court on September 16, 2002 void.  Relator also requests that we compel the
trial court to remove the affirmative finding of a deadly weapon from its nunc
pro tunc judgment of conviction and order of commitment.  We deny the petition.
          First, relator=s petition does not meet the
requirements of the Texas Rules of Appellate Procedure because it does not certify
that a copy was served on respondent trial court judge.  See Tex.
R. App. P. 9.5.
          In addition, there are three prerequisites for the issuance
of a writ of mandamus by an appellate court, namely:  (1) the lower court must have a legal duty to
perform a nondiscretionary act; (2) the relator must make a demand for
performance; and (3) the subject court must refuse that request.  Barnes v. State, 832 S.W.2d 424, 426
(Tex. App.CHouston [1st Dist.] 1992, orig.
proceeding).  Relator has not provided us
with a record that shows that he made any request of respondent trial court
judge to perform a nondiscretionary act that respondent refused.
          The petition for writ of mandamus is denied.
          It is so ORDERED
PER CURIAM
Panel
consists of Justices Keyes, Hanks, and Higley.
Do
not publish.   Tex. R. App. P. 47.2(b).




[1]           The Honorable Brady G. Elliot,
Presiding Judge, 268th District Court, Fort Bend County, Texas.


