In re Eric Ricardo Torres--Appeal from 216th Judicial District Court of Kendall County

MEMORANDUM OPINION

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 26, 2007

PETITION FOR WRIT OF MANDAMUS DENIED

In a petition for a writ of mandamus, relator Eric Ricardo Torres alleges that he filed a "Motion for a Nunc Pro Tunc Order to Set Aside Illegal and Unauthorized Sentence" in the trial court on April 4, 2007. Torres, who pled guilty to assault on a peace officer in 1993 and is serving his sentence, complains of the trial court's failure to rule on his post-conviction motion and seeks a writ of mandamus directing the trial court to set aside his sentence.

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). After these prerequisites are met, we are authorized to direct the trial court to consider and rule on a pending motion, but we may not tell the trial court what ruling it should make. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.--San Antonio 2004, orig. proceeding). It is the relator's burden to provide this court with a sufficient record to establish a right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.3(j); 52.7(a).

After reviewing Torres's petition and the accompanying documents, we conclude that Torres has not shown himself entitled to mandamus relief. (2) The record provided by Torres does not show that his motion was properly filed and is pending below. Torres's motion does not bear the court clerk's file stamp and nothing else in the record indicates that his motion was filed. Absent proof of a properly filed motion, Torres has failed to establish that the trial court had a legal duty to act. Additionally, even if we assume that Torres's motion was properly filed, Torres has not satisfied the other prerequisites to mandamus relief. Torres has not shown that he asked the trial court to rule on his motion and that it failed or refused to act within a reasonable time. Although Torres claims that on June 15, 2007 he filed a subsequent motion requesting a ruling, the record does not reflect that the latter motion was filed and brought to the trial court's attention.

A trial court may be compelled to rule on a motion only when the motion is properly filed, brought to the trial court's attention, and the trial court has failed or refused to rule within a reasonable time. See In re Salinas, 2005 WL 2369712, at *1 (Tex. App.--San Antonio 2005, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228-29 (Tex. App.--Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Torres has not met this burden. Accordingly, the petition for a writ of mandamus is denied.

PER CURIAM

1. This proceeding arises out of Cause No. 3039, styled State of Texas v. Eric Ricardo Torres, filed in the 216th Judicial District Court, Kendall County, Texas, the Honorable Stephen B. Ables presiding.

2. In the motion attached to his mandamus petition, Torres argues that his sentence exceeded the statutory maximum and is therefore unauthorized. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (a sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal).