











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. WR-74,603-01




IN RE ANDRES HERRERA, Relator




ON PETITION FOR A WRIT OF MANDAMUS
CAUSE NO. F-08-11091-R IN THE 265TH DISTRICT COURT 
FROM DALLAS COUNTY



           Per curiam.

O R D E R

            Relator has filed a motion for leave to file a writ of mandamus pursuant to the original
jurisdiction of this Court. Relator has already presented his claim to the Fifth Court of Appeals, but
was denied relief. In re Andres Herrera, No. 05-10-00897-CV (Tex. App.–Dallas Aug. 17, 2010)
(not designated for publication). Relator contends that he  filed a motion for DNA testing and an
affidavit in support of the motion in the convicting court, but that the judge has not ruled on the
motion. Tex. Code Crim. Proc. art. 64.01(a). A trial court has a ministerial duty to rule “upon a
motion that is properly and timely presented to it for a ruling.” State ex rel. Young v. Sixth Judicial
Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). Relator has alleged facts which, if true, could
entitle him to mandamus relief. 
             In these circumstances, additional facts are needed.  The respondent, the Judge of the 265th
District Court of Dallas County, is ordered to file a response with this Court addressing whether
Relator has properly filed a Chapter 64 motion in that court. If relator has filed such a motion, the
respondent shall address whether the motion has been ruled upon and, if the motion has not been
ruled upon, the respondent shall discuss the rationale for not taking action on the motion. The real
party in interest, the Dallas County District Attorney, may also submit a response. 
             This motion for leave to file a writ of mandamus will be held in abeyance until the
respondent has submitted the appropriate response.  Such response shall be submitted within 30 days
of the date of this order.
 
Filed: November 3, 2010
Do not publish            
