Petition for Writ of Mandamus Denied and Opinion filed January 17, 2019.




                                                   In The

                             Fourteenth Court of Appeals

                                           NO. 14-18-01083-CR

                            IN RE DARIUS DURON ELAM, Relator


                                   ORIGINAL PROCEEDING
                                     WRIT OF MANDAMUS
                                        232nd District Court
                                       Harris County, Texas
                                  Trial Court Cause No. 380350-I

                                  MEMORANDUM OPINION

      On December 17, 2018, relator Darius Duron Elam filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52.
In the petition, relator asks this court to compel the Honorable Kristen Guiney, presiding
judge of the 232nd District Court of Harris County,1 to rule on his “Motion for Leave to
Re-hear Chapter 64.04 Hearing that Comports with Standards.”


      1
          The Honorable Josh Hill became the presiding judge of the 232nd District Court on January 1, 2019.
      In 1984, relator was convicted of aggravated robbery and sentenced to life
imprisonment. See Elam v. State, 14-08-00580-CR, 2009 WL 3126413, at *1 (Tex.
App.—Houston [14th Dist.] Sept. 29, 2009, pet. ref’d) (mem. op., not designation for
publication). In 2009, this court affirmed the trial court’s denial of relator’s motion for
post-conviction DNA testing. Id. at *2. According to relator’s petition he filed a further
motion for post-conviction DNA testing in 2012, which the trial court granted. After
receiving the testing results relator sought a hearing pursuant to article 64.04 of the Code
of Criminal Procedure, which provides:

      After examining the results of testing under Article 64.03 and any
      comparison of a DNA profile under Article 64.035, the convicting court shall
      hold a hearing and make a finding as to whether, had the results been
      available during the trial of the offense, it is reasonably probable that the
      person would not have been convicted.
Tex. Crim. Proc. Code Ann. § 64.04.

      A relator must satisfy two predicates to justify mandamus relief. Powell v. Hocker,
516 S.W.3d 488, 494 (Tex. Crim. App. 2017). First, he must show that he has no adequate
remedy at law for obtaining the relief he seeks. Id. Article 64.04 requires, in a case in
which DNA testing has been ordered, that the trial court hold a hearing regarding the
results of the DNA testing, and make a finding on whether, had the results been available
during the trial, it is reasonably probable that the person would not have been convicted.
In re Jackson, 238 S.W.3d 603, 604 (Tex. App.—Waco 2007, orig. proceeding). The trial
court has a ministerial duty to make findings after DNA testing. Id. A relator can appeal
an adverse finding, but he cannot do so until such a finding is made, rendering appeal an
inadequate remedy for failure to make a finding. Id.

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       Second, a relator must demonstrate a clear right to the relief he seeks. Powell, 516
S.W.3d at 494. Where the conduct of a court is involved, a relator must demonstrate that
the act he seeks is ministerial, not judicial, in nature. Id. A relator establishes that the trial
court abused its discretion by failing to perform a ministerial act if the relator shows that
the court had a legal duty to perform and was asked to perform that duty but failed or
refused to do so. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana,
236 S.W.3d 207, 213 (Tex. Crim. App. 2007).

       Attached to relator’s petition is his motion for leave for the court to “re-hear” the
“Chapter 64.04 hearing.” The motion is not file-stamped to show that it is pending in the
trial court and does not otherwise reflect that it was presented to Judge Guiney. The trial
court is not required to consider a motion that has not been called to its attention by proper
means. In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig.
proceeding).

       Further, we cannot compel Judge Guiney to act and grant the requested relief
because she is no longer on the bench. We will not order the current trial court to act until
relator has properly presented the motion to the current trial judge.

       Because we cannot grant the requested relief, we deny relator’s petition for writ of
mandamus.


                                          PER CURIAM

Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).


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