Yvonne Bracamontes v. Francisco Bracamontes

NUMBER 13-12-00002-CR COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE FERNANDO ALEMAN On Petition for Writ of Mandamus MEMORANDUM OPINION

Before Chief Justice Valdez, Justice Garza, and Justice Vela

Memorandum Opinion Per Curiam Relator, Fernando Aleman, appearing pro se, has filed a petition for writ of mandamus requesting that this Court compel respondent, the presiding judge of the County Court of Bee County, Texas, to rule upon his motion for judgment nunc pro tunc seeking to ―clarify the record‖ in the underlying cause.1 The following documents are attached to relator’s petition: (1) a copy of the motion for judgment nunc pro tunc signed by relator on November 15, 2011, and (2) a copy of a letter written by relator to the trial court clerk, dated March 31, 2011.

To obtain mandamus relief for the trial court’s refusal to rule on a motion, a relator must establish that: (1) the motion was properly filed and has been pending for a reasonable period of time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. See In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling. See In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); In re Hearn, 137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228. The determination regarding what constitutes a ―reasonable period of time‖ to rule on a motion is dependent upon several factors, including the trial court’s actual knowledge of the motion, its overt refusal to act, the state of the court’s docket, and the existence of other judicial and administrative matters which must be addressed first. See In re Blakeney, 254 S.W.3d at 661; Ex parte Bates, 65 S.W.3d 133 (Tex. App.—Amarillo 2001, orig. proceeding).

Having examined and fully considered the petition for writ of mandamus and the applicable law, this Court is of the opinion that relator has not met his burden to obtain mandamus relief. First, though relator has provided a copy of his motion for judgment nunc pro tunc, the motion does not bear a clerk’s file stamp nor does it show that the motion has been presented to the trial court with a request for a ruling or otherwise brought to the trial court’s attention. See In re Davidson, 153 S.W.3d at 491; In re Hearn, 137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228. Second, relator has offered no legal authority or evidence showing that the alleged delay—less than two months2— constitutes an unreasonable period of time for the trial court to consider the motion.

For the foregoing reasons, the petition for writ of mandamus is DENIED.

PER CURIAM Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 6th day of January, 2012.