Denied and Opinion Filed December 1, 2016




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-01389-CV

                         IN RE JOSEPH HENRY BROWN, Relator

                 Original Proceeding from the 363rd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. F13-53946-W

                             MEMORANDUM OPINION
                            Before Justices Francis, Lang, and Brown
                                    Opinion by Justice Lang
       Before the Court is relator’s November 28, 2016 petition for writ of mandamus in which

relator complains that the trial court has not ruled on a Chapter 64 motion for DNA testing that

realtor purportedly filed on August 15, 2016. Relator asks this Court to order the trial court to

rule on the motion. Relator’s petition is not certified as required by rule 52.3(j) of the rules of

appellate procedure and does not contain a certified or sworn record as required by Rule 52.7.

TEX. R. APP. P. 52.3(j), 52.7. Although these deficiencies alone constitute sufficient reason to

deny mandamus relief, in the interest of judicial economy we address the petition

       To establish a right to mandamus relief in a criminal case, the relator must show that the

trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.

Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). Further, as the party

seeking relief, the relator has the burden of providing the Court with a sufficient mandamus

record to establish his right to mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863
(Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v. Packer, 827 S.W.2d

833, 837 (Tex. 1992) (orig. proceeding); In re Chavez, 62 S.W.3d 225, 228, 229 (Tex. App.—

Amarillo 2001, orig. proceeding). A trial court has a ministerial duty to rule upon a properly

filed and timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of

Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed

and timely presented, a motion must be presented to a trial court at a time when the court has

authority to act on the motion. See In re Hogg–Bey, No. 05–15–01421–CV, 2015 WL 9591997,

at *1–2 (Tex. App.—Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not designated for

publication). To establish entitlement to mandamus relief for a trial court’s refusal to act, the

relator must provide evidence to establish that the trial court had a legal duty to perform a

ministerial act, relator made demand for performance, and the court refused to perform. Stoner

v. Massey, 586 S.W.2d 843, 846 (Tex. 1979); In re Chavez, 62 S.W.3d at 229. Relator has failed

to meet those requirements.

       Here, the mandamus record does not include a certified or sworn copy of the trial court’s

docket sheet or other proof to establish relator filed the Chapter 64 motion, relator requested a

ruling or hearing on the motion, and that the trial court has failed to rule on relator’s motion.

TEX. R. APP. P. 52.3(k)(1)(a); 52.7(a). The absence of a mandamus record prevents this Court

from evaluating the circumstances of this case and the merits of relator’s complaints. Lizcano,

416 S.W.3d at 863 (Alcala, J. concurring); see also In re Chavez, 62 S.W.3d at 229; Barnes v.

State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).

Accordingly, we deny relator’s November 28, 2016 petition for writ of mandamus.



161389F.P05                                         /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE

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