                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00191-CR




             IN RE: RANDY HENDERSON




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                         MEMORANDUM OPINION
        Relator Randy Henderson has petitioned this Court for mandamus relief. Henderson

claims to have filed, in May 2013, a motion in the trial court seeking forensic DNA testing. See

generally TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2014). Henderson asks us to

compel the trial court to “afford him the right to post-conviction forensic [DNA] testing pursuant

to Chapter 64 of the Texas Code of Criminal Procedure.” We construe this as a request to

compel the trial court to rule on Henderson’s motion. 1

        We may grant a petition for writ of mandamus when the relator shows there is no

adequate remedy at law to redress the alleged harm and that the act to be compelled is purely

ministerial.    Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig.

proceeding) (per curiam). “In proper cases, mandamus may issue to compel a trial court to act.”

In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see also

Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig proceeding) (per curiam)

(trial court abuses discretion by refusing to conduct hearing and render decision on motion);

Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App.—Houston [14th Dist.] 1990, orig.

proceeding) (mandamus appropriate remedy to require trial court to hold hearing and exercise

discretion). Trial courts are not required to consider or rule on a motion unless the motion is

called to the court’s attention. See Blakeney, 254 S.W.3d at 662.

1
 We may, where appropriate, direct a trial court to rule on a motion after a reasonable time, but this Court cannot
instruct the trial court how to rule. In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig.
proceeding). The trial court, of course, is not obligated to order testing unless the petitioner “establishes by a
preponderance of the evidence that there is a reasonable probability that the person would not have been prosecuted
or convicted if exculpatory results had been obtained through DNA testing.” Dinkins v. State, 84 S.W.3d 639, 643
(Tex. Crim. App. 2002).
                                                        2
         Henderson’s petition is not accompanied by any proof that he brought this matter to the

attention of the trial court. See TEX. R. APP. P. 52.3(k)(1). Nor is the petition accompanied by a

certified or sworn copy of the motion that is the subject of his complaint, as is required by the

Rules. 2 See TEX. R. APP. P. 52.3(k)(1)(A). Therefore, we are unable to determine if this matter

has been brought to the trial court’s attention or whether the trial court has had a reasonable time

in which to rule on Henderson’s motion. It is the relator’s burden to provide this Court with a

sufficient record to establish the right to mandamus relief. See TEX. R. APP. P. 33.1(a),

52.3(k)(1)(A), 52.7(a)(1). Here, the record is inadequate to grant mandamus relief.

         Accordingly, we deny Henderson’s petition for writ of mandamus.




                                                      Jack Carter
                                                      Justice

Date Submitted:            December 2, 2014
Date Decided:              December 3, 2014

Do Not Publish




2
 Henderson sought mandamus relief one year ago, apparently regarding the same motion for forensic DNA testing.
See Henderson v. State, cause number 06-13-00189-CR. Our opinion in that case states that Henderson did attach a
certified copy of his May 2013 motion for DNA testing. We denied relief after finding an unreasonable delay had
not yet been established. Relator must still file a copy of the motion upon which he seeks a ruling with the instant
petition: “The filing of a record in one case does not operate to compensate for the deficiency of the record in
another. A party does not have any right to use an appellate record in one case to compensate for a deficient record
in another case even though an appellate court does have the authority (but rarely does) to take judicial notice of its
own records.” In re Estate of Velvin, 398 S.W.3d 426, 428 n.4 (Tex. App.—Texarkana 2013, orig. proceeding); see
also Nolan v. Bettis, 577 S.W.2d 551, 554 (Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (explaining why
appellate courts do not normally take judicial notice of their own records).
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