Petition for Writ of Mandamus Denied and Memorandum Opinion filed December
11, 2018.




                                           In The

                        Fourteenth Court of Appeals

                                    NO. 14-18-01012-CR



                  IN RE THERMON JAMES FLANIGAN, Relator


                              ORIGINAL PROCEEDING
                                WRIT OF MANDAMUS
                                   174th District Court
                                  Harris County, Texas
                              Trial Court Cause No. 716513

                             MEMORANDUM OPINION

      On November 21, 2018, relator Thermon James Flanigan filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see
also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable
Hazel B. Jones, presiding judge of the 174th District Court of Harris County, to examine
the results of alleged DNA testing, 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. See Tex. Crim. Proc. Code § 64.04.
      As the party seeking relief, relator has the burden of providing this court with a
sufficient record to establish his right to mandamus relief. See Walker v. Packer, 827
S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R. App. P. 52.7(a)(1) (relator must
file with petition “a certified or sworn copy of every document that is material to the
relator’s claim for relief and that was filed in any underlying proceeding”).

      “A party’s right to mandamus relief generally requires a predicate request for some
action and a refusal of that request.” In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig.
proceeding) (per curiam). “A relator must establish that the trial court (1) had a legal duty
to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule
on the motion within a reasonable time.” In re Henry, 525 S.W.3d 381 (Tex. App.–Houston
[14th Dist.] 2017, orig. proceeding). The record must show that the motion was both filed
and brought to the attention of the judge for a ruling. See In re Foster, 503 S.W.3d 606,
607 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam); In re Layton,
257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding).

      Relator has not provided this court with a record showing that: (1) he requested the
trial court to hold a hearing and make a finding, as provided for by Article 64.04 of the
Code of Criminal Procedure, and (2) the trial court refused or failed to rule on such a
request within a reasonable time. Accordingly, we deny relator’s petition for writ of
mandamus.

                                        PER CURIAM

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

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