Date: 02-04-2016

Case Style: In Re Erwin Burley

Case Number: 13-16-00073-CR

Judge: Rogelio Valdez, Dori Contreras Garza, Gregory T. Perkes

Court: COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Plaintiff's Attorney: Mark Skurka

Defendant's Attorney: Erwin Burley

Description: Relator, Erwin Burley, proceeding pro se, filed a document entitled “Declaration for
Entry of Default,” “in the above cause on January 28, 2016.2 Relator appears to be seeking default judgments on a petition for writ of habeas corpus and a motion to recuse
the trial court on grounds that the trial court has not timely ruled on those matters.
Because relator’s pleading does not reference an order or judgment subject to appeal,
we construe this document as a petition for writ of mandamus. See generally TEX. R.
APP. P. 25.1(a), (d).
To be entitled to mandamus relief, relator must establish both that he has no
adequate remedy at law to redress his alleged harm, and that 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). If relator fails to meet both of these requirements, then the petition for writ of
mandamus should be denied. See id.
It is the relator’s burden to properly request and show entitlement to mandamus
relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see
Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled
to the extraordinary relief he seeks.”). In addition to other requirements, the relator must
include a statement of facts supported by citations to “competent evidence included in the
appendix or record,” and must also provide “a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the appendix or record.”
See generally TEX. R. APP. P. 52.3. The relator must also file an appendix and record
sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the
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required contents for the appendix); R. 52.7(a) (specifying the required contents for the
record); see also Walker, 827 S.W.2d at 837.
Consideration of a request or 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); see White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982).
Thus, in proper cases, mandamus may issue to compel the trial court to act. See In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
To obtain mandamus relief for the trial court’s refusal to rule on a motion, a relator
must establish: (1) the motion was properly filed and has been pending for a reasonable
time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to
rule. 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 Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding). The relator
must show that the trial court received, was aware of, and was asked to rule on the
motion. In re Blakeney, 254 S.W.3d at 661; In re Villarreal, 96 S.W.3d 708, 710 (Tex.
App.—Amarillo 2003, orig. proceeding). In this regard, the mere filing of a motion does
not equate to a request that the trial court rule on the motion. See In re Sarkissian, 243
S.W.3d at 861; In re Hearn, 137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228; Barnes,
832 S.W.2d at 426; cf. In re Shredder Co., 225 S.W.3d at 680 (“Relator has made
repeated requests for a ruling on its motion.”).
In this case, relator’s petition for writ of mandamus was not filed in compliance with
the Texas Rules of Appellate Procedure insofar as it, inter alia, fails to contain sections
for the identity of parties, the table of contents, an index of authorities, a statement of
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facts, a statement of jurisdiction, the issues presented, argument and authorities, and
prayer. See generally TEX. R. APP. P. 52. Relator did not file an appendix or record with
his “Declaration for Entry of Default,” but did include copies of his “Motion for Judgment
by Default” and “Motion to Disqualify Judge from Habeas Proceedings.” Neither
document is file-stamped.
Relator has failed to meet his burden to obtain mandamus relief. Here, there is
nothing in the limited record before this Court to establish that relator’s pleadings were
properly filed with the trial court or that relator has ever requested a ruling on his pleadings
or otherwise called them to the respondent’s attention. See Barnes, 832 S.W.2d at 426
(denying mandamus petition where relator did not ask for a hearing on his motions or take
any action to alert trial court that it had not yet considered his motions). Accordingly,
relator has not furnished an appendix or record sufficient to support his claim for relief
insofar as he has not demonstrated that his pleadings were presented to the respondent
and the respondent has refused to act.

Outcome: The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has not met his burden to obtain
mandamus relief. Accordingly, the petition for writ of mandamus is DENIED.

Plaintiff's Experts:

Defendant's Experts:

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