DENIED and Opinion Filed October 16, 2019




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-19-01104-CV

                          IN RE JOSEPH WAYNE HUNTER, Relator

                  Original Proceeding from the 265th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. F13-56295-R

                              MEMORANDUM OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                   Opinion by Justice Whitehill
         Before the Court are relator’s September 11, 2019 motion for leave to file writ of

mandamus and his petition for writ of mandamus contending the trial court has not ruled on a

motion for forensic DNA testing he alleges he filed on May 20, 2019. We deny as moot the motion

and deny the petition.

       A motion for leave is not required to file a petition for writ of mandamus in an intermediate

appellate court. See TEX. R. APP. P. 52.1. Accordingly, relator’s petition for writ of mandamus

has been filed by the Clerk of the Court making the motion moot.

       When seeking mandamus relief, the relator’s petition must contain a certification stating

that the person filing the petition “has reviewed the petition and concluded that every factual

statement in the petition is supported by competent evidence included in the appendix or record.”

TEX. R. APP. P. 52.3(j). Relator’s petition bears a certification stating relator’s motion is “true and
correct.” Thus, relator’s certification does not comply with the rules of appellate procedure. See

In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding).

       Furthermore, to establish a right to mandamus relief, the relator must show that the trial

court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks,

391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). To show his entitlement to

mandamus relief compelling a trial court to rule on a motion, relator must show (1) the trial court

had a legal duty to rule on the motion because it was properly filed and timely presented, (2) relator

requested a ruling on the motion, and (3) the trial court failed or refused to rule on the motion

within a reasonable period of time. In re Carter, No. 05-18-00296-CV, 2018 WL 1417409, at *1

(Tex. App.—Dallas Mar. 22, 2018, orig. proceeding); In re Molina, 94 S.W.3d 885, 886 (Tex.

App.—San Antonio 2003, orig. proceeding) (per curiam). As the party seeking relief, the relator

has the burden of providing the Court with a sufficient mandamus record to establish his right to

mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rules

52.3 and 52.7 require the relator to provide “a certified or sworn copy” of certain documents,

including any order complained of, any other document showing the matter complained of, and

every document that is material to the relator’s claim for relief that was filed in any underlying

proceeding. TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1); Butler, 270 S.W.3d at 758–59.

       Relator attaches two letters to his mandamus petition, but he does not include a certified or

sworn copy of the motion for forensic DNA testing nor a certified or sworn copy of the trial court’s

docket sheet or other proof that establishes relator filed the motion, requested a hearing and/or

ruling on the motion, and the trial court has failed to act on relator’s request within a reasonable

time. TEX. R. APP. P. 52.3(k)(1)(a), 52.7(a). The letters relator attaches to his petition purporting

to show he brought the matter to the trial court’s attention are not certified or sworn copies and do

not bear a file stamp indicating when they were filed with the trial court.

                                                 –2–
        We conclude the mandamus record is insufficient to establish that the motion for forensic

DNA testing was properly filed and timely presented and that the trial court was asked to rule but

failed to do so within a reasonable time. As such, relator has not established a violation of a

ministerial duty and is not entitled to mandamus relief. Accordingly, we deny relator’s petition

for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the petition if the court

determines relator is not entitled to the relief sought).




                                                     /Bill Whitehill/
                                                     BILL WHITEHILL
                                                     JUSTICE




191104F.P05




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