                                  MEMORANDUM OPINION
                                           No. 04-11-00171-CR

                                       IN RE Ernest HASTINGS

                                    Original Mandamus Proceeding 1

PER CURIAM

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: March 16, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

           On March 2, 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. However, in order to be

entitled to mandamus relief, relator must establish 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

1
 This proceeding arises out of Cause No. 2010-CR-7940, styled State of Texas v. Ernest Hastings, pending in the
437th Judicial District Court, Bexar County, Texas, the Honorable Lori Valenzuela presiding.
                                                                                   04-11-00171-CR


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 February 28,

2011, just two days before relator’s petition for writ of mandamus was filed in this court.

Relator has 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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