                                   NO. 07-06-0017-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JANUARY 25, 2006

                         ______________________________


                     IN RE JOHANSON LEE WATSON, RELATOR


                         _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Relator Johanson Lee Watson, an indigent inmate, seeks a writ of mandamus to

compel the Honorable Tom Neely to consider and rule on certain motions. Presenting four

issues, relator maintains he is entitled to mandamus relief. For the reasons expressed

herein, we must deny the request for a writ.


       Pursuant to a plea of guilty, in 1997, appellant was convicted of sexual assault in

the 46th District Court of Wilbarger County. In 2001, the convicting court denied relator’s

motion for DNA testing reciting that “no evidence containing biological material has been

preserved, and that identity was not and is not an issue in this case.” The trial court’s
ruling was affirmed by this Court in Watson v. State, 96 S.W.3d 497 (Tex.App.–Amarillo

2002, pet. ref’d). In May 2003, pursuant to relator’s inquiry, the Texas Department of

Public Safety notified him that evidence samples used in his case were still being

preserved in the Department’s laboratory.


       Relator must satisfy three requirements to establish his entitlement to the issuance

of a writ of mandamus, to-wit: (1) a legal duty to perform; (2) a demand for performance;

and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). When a

motion is properly filed and pending before a trial court, the act of considering and ruling

upon the motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158

(Tex. 1992). However, the trial court has a reasonable time within which to perform that

ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San

Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is

dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426,

(Tex.App.–Houston [1st Dist.] 1992, orig. proceeding). Other factors are influential such

as the trial court’s actual knowledge of the motion, its overt refusal to act, the state of its

docket, and other judicial and administrative duties which must be addressed. In re

Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding). Further, the

party requesting relief must provide a sufficient record to establish his entitlement to

mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). See also In re

Bates, 65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001, orig. proceeding); In re Villarreal, 96



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S.W.3d at 710 n.2 (filing something with the district clerk does not demonstrate that a

motion has been brought to the trial court’s attention).


       Several copies of documents presumably filed in the convicting court accompany

relator’s petition for writ of mandamus. On August 29, 2005, he filed a motion in the

convicting court requesting appointment of counsel to pursue a motion for DNA testing

pursuant to article 11.07, section four of the Texas Code of Criminal Procedure. A motion

for leave to subpoena or call potential witnesses was filed on September 12, 2005, and on

September 19, 2005, he filed a motion for leave for supplemental [sic] and exhibits.


       According to copies of three letters dated October 5, November 1, and December

19, 2005, relator corresponded with the Wilbarger County District Clerk inquiring on the

disposition of his motions. A copy of the District Clerk’s response to relator’s October 5th

inquiry indicates his request was forwarded to his attorney, Earl Griffin. The limited record

before us also contains a file-stamped motion dated November 29, 2005, for leave to

compel the District Judge of Wilbarger County to act on relator’s petition for writ of habeas

corpus. Nothing in the scant record demonstrates presentation of the motions to the trial

court and a refusal to act. We conclude relator has not satisfied the burden to show his

entitlement to mandamus relief. See Walker, 827 S.W.2d at 837.


       Accordingly, relator’s petition for writ of mandamus is denied.


                                          Don H. Reavis
                                            Justice

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