Petition for Writ of Mandamus Denied and Memorandum Opinion filed
February 25, 2020.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-20-00119-CR



                 IN RE DAMON KENDRICK DOVE, Relator


                          ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              268th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 12-DCR-061181A

                         MEMORANDUM OPINION

      On February 3, 2020, relator Damon Kendrick filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the presiding judge of the
268th District Court of Fort Bend County, to provide the attorney representing the
State with a copy of relator’s “Motion for Forensic DNA Testing” (the “Motion”),
as required by article 64.02(a) of the Texas Code of Criminal Procedure. A copy of
the Motion which is attached to relator’s petition and has a stamp indicating that it
was filed on May 14, 2019.1

       To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding).

       As the party seeking relief, relator has the burden of providing this court with
a sufficient record to establish relator’s right to mandamus relief. See Lizcano v.
Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala,
J. concurring); Tex. R. App. P. 52.7(a)(1) (relator must file with petition “a certified
or sworn copy of every document that is material to the relator’s claim for relief and
that was filed in any underlying proceeding”).

       The trial court has a ministerial duty to comply with article 64.02(a) by
forwarding a copy of the Motion to the attorney representing the State. But “merely
filing a motion with a court clerk does not show that the motion was brought to the
trial court’s attention for a ruling because the clerk’s knowledge is not imputed to
the trial court.” In re Amaro, No. 14-14-00340-CV, 2014 WL 2157088, at *1–2
(Tex. App.—Houston [14th Dist.] May 20, 2014, orig. proceeding) (per curiam)
(mem. op.). Relator must provide a record which shows that the judge was aware of
and asked to rule on the motion because a judge cannot be faulted for doing nothing


       1
           We previously denied a petition for writ of mandamus by relator related to the Motion because
relator failed to provide this court with a file-stamped copy of the Motion. See In re Dove, No. 14-19-
01008-CR, 2020 WL 103585 (Tex. App.—Houston [14th Dist.] Jan. 9, 2020, orig. proceeding) (per curiam)
(mem. op., not designated for publication).
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when the judge was not aware of the need to act; the clerk’s knowledge is not
imputed to the judge. See In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex. App.—
Amarillo 2003, orig. proceeding).

      Because relator has not provided this court with a record showing that he has
brought the Motion to the attention of the trial court and requested the court to
comply with article 64.02(a), we deny the petition for writ of mandamus.

      We dismiss relator’s motion for leave to file a petition for writ of mandamus
as moot because leave is not required to file a petition for writ of mandamus in an
intermediate appellate court. See Tex. R. App. P. 52.1; In re Stroman, No. 14-16-
00662-CV, 2016 WL 5110644, at *1 (Tex. App.—Houston [14th Dist.] Sept. 20,
2016, orig. proceeding) (per curiam) (mem. op.).


                                      PER CURIAM

Panel consists of Justices Christopher, Wise, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).




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