In Re Thomas Florence--Appeal from 56th District Court of Galveston County

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Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 25, 2011. In The Fourteenth Court of Appeals ____________ NO. 14-10-01228-CR ____________ THOMAS FLORENCE, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 56th District Court Galveston County, Texas Trial Court Cause No. 10CR1217 MEMORANDUM OPINION On December 15, 2010, relator filed a petition for writ of mandamus in this court. See Tex. Gov t Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. Relator requests we compel the Honorable Court to bring the relator before the court to rule on said probable cause motion . . . To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.proceeding). Consideration of a motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (orig.proceeding) (op. on reh'g). A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. In re Keeter, 134 S.W.3d 250, 252 (Tex. App. -- Waco 2003, orig. proceeding). A relator must show that the trial court received, was aware of, and asked to rule on the motion. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App. -- Amarillo 2003, orig. proceeding). Relator has not provided a file-stamped copy of his motion to demonstrate that it is actually pending in the trial court. Absent proof that the trial court has been requested to rule on a motion, relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator s petition for writ of mandamus. PER CURIAM Panel consists of Justices Seymore, Boyce, and Christopher. Do Not Publish Tex. R. App. P. 47.2(b). 2

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