

Opinion issued December 16, 2010
 


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00993-CR
NO. 01-10-00994-CR
———————————
IN RE OSCAR
JOSEPH, Relator

 

 

Original Proceeding on Petition for Writ of Mandamus
 

 
MEMORANDUM OPINION
Relator, Oscar Joseph, has filed a pro se petition for writ
of mandamus, asking this Court to direct respondent[1] to rule on relator’s “motion to dismiss
counsel.”  We deny the petition for writ
of mandamus.
          Relator’s petition does not meet the
requirements of the Texas Rules of Appellate Procedure.  See Tex.
R. App. P. 9.5 (requiring that certified copy be served on respondent); 52.3(k)
(requiring certified or sworn copy of any order complained of or any other
document showing matter complained of).
          In addition, to establish that the
trial court abused its discretion by failing to rule, the relator must show
that the trial court (1) had a legal duty to perform a nondiscretionary act, (2)
was asked to perform that act, and (3) failed or refused to do so.  Barnes
v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding). Specifically, the relator must show that the trial court received
the motion, was aware of it, and was asked to rule on the motion. Id. Here, relator has not provided us
with a record showing that the trial court received his motion, was aware of
it, was asked to rule on it, and refused to rule.  See id.
Accordingly,
we deny the petition for writ of mandamus. 

PER CURIAM
Panel
consists of Chief Justice Radack and Justices Alcala and Massengale.
Do
not publish.   Tex. R. App. P. 47.2(b).




[1]
          Respondent is The Honorable Mark
Kent Ellis of the 351st District Court, Harris County, Texas.


