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MEMORANDUM OPINION

No. 04-09-00749-CR

IN RE Kevin J. REZENDES

Original Mandamus Proceeding


PER CURIAM
 
Sitting:            Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
 
Delivered and Filed: December 9, 2009 

PETITION FOR WRIT OF MANDAMUS DENIED
            On November 20, 2009, relator Kevin Rezendes filed a petition for writ of mandamus,
complaining of the trial court’s failure to rule on his motion to disqualify his attorney.  To obtain a
writ of mandamus compelling the trial court to consider and rule on a motion, a 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).  The record before us fails to establish relator is entitled
to the relief requested.  Relator alleges Mr. James Tocci was appointed to represent him in the
underlying criminal proceeding and relator alleges he filed a motion to disqualify Mr. Tocci because
counsel has failed to communicate with him.  This court has been informed by the trial court clerk
that no attorney has yet been appointed to represent relator and no motions are pending in trial cause
number 2009-CR-10097.

            Accordingly, because relator has not met his burden of providing a record establishing that
a motion was properly filed and has awaited disposition for an unreasonable amount of time, he has
not provided this court with grounds to usurp the trial court’s inherent authority to control its own
docket.  See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding).
Accordingly, relator’s petition for writ of mandamus  is denied.  Tex. R. App. P. 52.8(a).  
PER CURIAM
 
DO NOT PUBLISH
