

 
 











 
 
 
 
 
 
                             NUMBER 13-05-632-CR
 
                         COURT OF APPEALS
 
               THIRTEENTH DISTRICT OF TEXAS
 
                  CORPUS CHRISTI - EDINBURG
___________________________________________________________________
 
         IN RE CARLOS GARZA
__________________________________________________________________
 
                      On Petition for Writ of
Mandamus ___________________________________________________________________
 
                     MEMORANDUM OPINION
 
          Before Chief Justice Valdez and Justices Castillo and Garza
                             Per Curiam Memorandum Opinion
 
Relator, Carlos Garza, a pro se inmate, requests we
compel respondent, Judge Roberto Garza of the 138th District Court of Cameron County,
to rule on relator=s motion for forensic DNA testing pursuant to
article 64.01 of the Texas Code of Criminal Procedure.  See Tex.
Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05).  Relator alleges that over two months have
passed since the filing of his motion and there has been no response from the
trial court.




When a motion is properly pending before a trial
court, the act of considering and ruling upon it is a ministerial act.  Eli Lilly & Co. v. Marshall, 829
S.W.2d 157, 158 (Tex. 1992).   Before
relator may be entitled to mandamus relief, however, he must provide a
sufficient record to show the motion was presented to the trial court and it
refused to act.  In re Villarreal,
96 S.W.3d 708, 710 n.2 (Tex. App.BAmarillo 2003, orig. proceeding) (filing something
with the district clerk does not demonstrate that a motion has been brought to
the trial court's attention).   Relator's
petition is not accompanied by a certified or sworn copy of the motion that is
the subject of his complaint as required by Rule 52.3(j)(1)(A) of the Texas
Rules of Appellate Procedure.  See
Tex. R. App. P. 52.3(j)(1)(A).  Because we do not have the motion before us,
there is no evidence that relator=s motion complied with the requirements of the DNA
testing statute.  See Tex. Code Crim. Proc. art.
64.01(a).  Thus, we conclude he has not
satisfied his procedural burden to show entitlement to mandamus relief.  See Walker v. Packer, 827 S.W.2d 833,
837 (Tex. 1992).  
Accordingly, relator's petition for writ of mandamus
is denied.[1]
 
  
PER CURIAM
Do not publish. 
Tex. R. App. P.
47.2(b).  
Memorandum Opinion delivered and filed
this 17th day of October, 2005.
 




[1]Relator has also filed a motion to
proceed in forma pauperis.  Given
our disposition of his petition for writ of mandamus, this motion is dismissed
as moot.


