                                   NUMBER 13-08-00191-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                                 IN RE MARK WADE SEATON


                             On Petition for Writ of Mandamus


                                   MEMORANDUM OPINION

                     Before Justices Yañez, Rodriguez, and Vela
                         Per Curiam Memorandum Opinion1

        Relator, Mark Wade Seaton, pro se, filed a petition for writ of mandamus in this

Court on April 11, 2008. Relator asks this Court to compel the trial court to process

relator’s motion for DNA testing under Chapter 64 of the Texas Code of Criminal

Procedure. See TEX . CODE CRIM . PROC . ANN . arts. 64.01-64.05 (Vernon 2006 & Supp.

2007). We deny the petition for writ of mandamus for the reasons stated herein.


        1
          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinion but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
       First, the petition for writ of mandamus fails to comply with the Texas Rules of

Appellate Procedure. See generally TEX. R. APP. P. 52.3.

       Second, a mandamus petitioner establishes that the trial court abused its discretion

by failing to rule on a matter if the petitioner shows that the trial court: (1) had a legal duty

to rule; (2) was asked to rule; and (3) failed or refused to do so. See In re Dimas, 88

S.W.3d 349, 351 (Tex. App.–San Antonio 2002, orig. proceeding); In re Chavez, 62

S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d

424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding); accord O'Connor v. First

Ct. of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). A trial court has a

reasonable time to perform the ministerial duty of considering and ruling on a matter

properly filed and before the court. Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at

426. Whether the judge has acted within a “reasonable” period of time depends on the

circumstances of the case. Chavez, 62 S.W.3d at 228.

       A party who complains about a trial court's refusal to hear or rule on a matter must

show that the matter was brought to the attention of the trial court and that the trial court

failed or refused to rule. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.–San Antonio 2004,

orig. proceeding); Barnes, 832 S.W.2d at 426-27; see e.g., In re Daisy, 156 S.W.3d 922,

924 (Tex. App.–Dallas 2005, orig. proceeding) (granting mandamus relief when record

contained several letters from the trial court explaining its refusal to rule on relator's

motion). Merely filing the matter with the district clerk is not sufficient to impute knowledge

of the pending pleading to the trial court. Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d

at 228.



                                               2
       Relator alleges that he filed his motion for DNA testing on February 19, 2008, and,

on March 20, 2008, wrote the district clerk a letter requesting that the matter be set for

hearing. The record currently before the Court fails to establish (1) the filing date for

relator’s motion, (2) that relator has called the trial court's attention to his motion or

requested that a hearing be set to determine its merit, and (3) whether the trial court has

had a reasonable time within which to rule but has failed or refused to do so. Therefore,

we cannot conclude that relator has shown any abuse of discretion by the trial court. See

In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003, orig. proceeding).

       The Court, having examined and fully considered the petition for writ of mandamus

is of the opinion that relator has not shown himself entitled to the relief sought.

Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP. P. 52.8(a).

                                                       PER CURIAM

Do not publish.
See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 24th day of April, 2008.




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