### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00526- CV

In re P atric k Lee Duncan

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N
Relator Patrick L ee Dunca n, an inmate in the Texas Depa rtment of Criminal J ustice, has filed a pro se petition for writ of mandamus asking this Court to compel the Hon o ra ble Clifford A. Br own, presiding judge of the 147th J udicial District Court of Travis County , to rule on his motion to enter a nunc pro tunc judgme nt modify ing his 1990 judgme nt of conviction for murder beca use (1) he alleg edly was not corr ectly admonished as to his exact place of confine ment (the trial court orally pronounce d that he would be incar cer ated in the Texas Depa rtment of Correc tions, not the Texas D epar

tment of Criminal J ustice–I nstitut ional Division, as the judgme nt r efle cts), (2) the judgme nt does not contain his rig ht thumbprint, and (3) he alleg edly was not admonished about the court costs of $82.50 and is indige nt. See Tex
. Gov’t C o de Ann. § 22.221; see also Tex. R. App. P. 52.1. W e deny

the petition. To obtain mandamus relief for the trial court’s ref usal to r ule on a motion, a relator must establish: (1) the motion was proper ly filed and has been pending for a rea sonable time; (2) the relator reque sted a ru l i n g o n the motion; and (3) the trial court ref used to rule. In re Sarkissian , 243 S.W .3d 860, 861 (Tex. App.—Waco 2008, orig
. p ro ce eding ) (mem. op.); In re Hearn ,137 S.W .3d 681, 685 (Tex. App.—San Antonio 2004, orig
. proce eding ). A rela tor must show that

the tri al court rec eived, was awa re of, and was asked to rule on the motion. In re Blakene y , 254 S.W .3d 659, 661 (Tex. App.—Texarkana 2008, orig
. proce eding ); In re Villarreal , 96 S.W .3d 708, 710 (Tex. App.—Amarillo 2003, orig . proce eding ). I t is relator’s burden to pr operly reque st a nd show entitlement to mandamus relief
. W alker

v. Pack er , 827 S.W .2d 833, 837 (Tex. 1992); In re Davidson , 153 S.W .3d 490, 4 9 1 (Tex. App.—Amar illo 2004, orig
. proce eding ); see Barnes v. Sta t e , 8 3 2 S
. W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig
. proce eding ) (per curiam) (“Eve n a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.” ). I n this reg ard, the relator must provide the revie wing court with a rec ord sufficie nt to establish his rig ht to mandamus relief
. See W alker , 827 S.W .2d at 837; In re Blakene y , 254 S.W .3d at 661; see also Tex. R. App. P. 52.7(a) (1) (relator must file with petition “a cer tified or sworn copy of ever y document that is materia l to the relator’s claim for relief and that was filed in any underly ing pr ocee ding” ), 52.7(a ) (spec ify ing r equire d contents for rec ord), 52.3( k) (spe cify

ing r equire d contents for

appendix). Dunca n asser ts in his petition that he filed his motion to enter judgm en t n u n c pro tunc on J une 15, 2015, with the Travis County District Clerk. Howeve r, he has failed to provide this Court 1 with a file-stampe d copy of his motion or any other documents to show that a proper ly filed motion is pending befor e the trial court. Consequently , there is no way fo r u s t o d et ermine whether the

I n suppo rt o f his petition for writ of mandamus, Dunca n attache d a document entitled 1 “Motion to Enter J udg ment Nunc Pro Tunc” as we l l as corr espondenc e addre ssed to the court coordinator reque sting that the motion be set for h ea ri ng and a document entitled “Motion to Compel,” reque sting that the court rule on his motion for judgme nt nunc pro tunc. Howeve r, none of these doc uments are file-mar ked by the district cler

k. 2motion was proper ly filed or, if it was, the date on which it was rec eived by either the cler k’s office
or the judge
. Even if we assume that the motion wa s proper ly filed, Dunc an has not de monstrated that the motion has been broug ht to the trial court’s attention or that the court is awa re of the motion. See In re Hearn , 13 7 S.W .3d at 685 (simply filing matter with district cler k is not sufficie nt to impute knowledg e of pending pleading to t ri al court). He has failed to provide any file-mar ked
corr espondenc e to the district court reque sting a ruling on t h e motion or any other file-mar ked document that shows that he broug ht the m o t i o n t o t h e attention of the trial court. See In re Sarkissian , 243 S.W .3d at 861 (mere filing of motion with trial court cler k does not constitute reque st that trial court rule on motion). Fur thermore , Dunca

n has failed to p ro vide any thing indicating that t h e trial court has ref used to rule on the motion or has failed to rule within a
rea sonable time.

Absent a showingthat the trial cour t is aware of the motion, has been a sked to rule
on his req u es t , and ref

used to do so, Dunca

n has not established entitlement to the extraordinary relief o f a wr i t of mandamus. See In re Lucio , No. 03-12-00056, 2012 WL 593533, at *2 (Tex. App.—Austin Fe b. 23, 2012, orig
. proce eding ) (mem. op.) (mandamus relief denied beca use relator failed to provide copy of motion, any corr espondenc e to district court reque sting ruling on motion,
or any thing indicating district c ourt ref used to r ule on motion). Accor dingly , we de ny the petition for wr it of mandamus. See Tex. R. App. P . 52.8.

3__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Filed: August 28, 2015

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