DENY; and Opinion Filed February 27, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00221-CV

                              IN RE FRANCIS EWERE, Relator

                  Original Proceeding from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F97-22264-KU

                              MEMORANDUM OPINION
                            Before Justices O'Neill, Lang, and Brown
                                   Opinion by Justice Brown
       In this inmate pleading, relator complains that the trial court has failed to rule on his

motion under Chapter 64 of the Texas Code of Criminal Procedure for DNA testing of the

biological materials collected during the investigation of his criminal case. The Court treats the

pleading as a petition for writ of mandamus. Relator alleges that he filed his motion in July 2013

and that it remains pending with no ruling. Relator includes no support for his complaint. To be

entitled to mandamus relief in a criminal case, the relator must show the trial court violated a

ministerial duty and that relator has no adequate remedy by appeal. See Simon v. Levario, 306

S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding); State ex rel. Hill v. Court of

Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). A

trial court has a ministerial duty to rule upon a motion that is properly presented to it for ruling.

See Simon, 306 S.W.3d at 321.
       The courts of appeals have concurrent mandamus jurisdiction with the Court of Criminal

Appeals in post-conviction proceedings, including mandamus proceedings related to DNA

testing. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003). Mandamus will lie

to compel the trial court to follow the statute. Padilla, 122 S.W.3d at 808. Because relator’s

petition includes no supporting documents and does not include a proper certification, the record

before the Court does not support granting the writ. TEX. R. CIV. P. 52.3(j) & (k). Accordingly,

on the record before the Court, relator has not shown that he is entitled to the relief requested.

Accordingly, the Court DENIES the petition for writ of mandamus.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE

140221F.P05




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