Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 19, 2017.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-17-00746-CR
                                NO. 14-17-00747-CR



                     IN RE DONALD RAY LUSS, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                              232nd District Court
                             Harris County, Texas
                    Trial Court Cause Nos. 579966 & 579967

                         MEMORANDUM OPINION

       On September 25, 2017, relator Donald Ray Luss filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to compel the presiding
judge of the 232nd District Court of Harris County to rule on this motion for DNA
testing.
      To be entitled to mandamus relief, a relator must show that he has no adequate
remedy at law for obtaining the relief he seeks; and (2) what he 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). A trial court has a
ministerial duty to consider and rule on motions properly filed and pending before
it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d
381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).

      A relator must establish that the trial court (1) had a legal duty to rule on the
motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the
motion within a reasonable time. Id. It is relator’s burden to provide a sufficient
record to establish that he is entitled to relief. See Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding). Relator has failed to do so. Relator has
not provided this court with a file-stamped copy of his motion requesting such relief
from the trial court. See Henry, 525 S.W.3d at 382. In the absence of a file-stamped
copy of relator’s motion for DNA testing, relator has not established that the motion
is actually pending in the trial court.
      Moreover, even if relator had established that his motion is properly pending,
he has not demonstrated that his motion was properly presented to the trial court.
The trial court is not required to consider a motion that has not been called to its
attention by proper means. Id.

      Relator further claims that the trial court has a ministerial duty to order DNA
testing of the State’s biological evidence. To the extent relator requests that we
compel the trial court to grant his motion for DNA testing, we cannot tell the trial


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court how to rule on the motion. See In re Blakeney, 254 S.W.3d 659, 661 (Tex.
App.—Texarkana 2008, orig. proceeding).

      Relator has not shown that he is entitled to mandamus relief. Accordingly,
we deny relator’s petition for writ of mandamus.


                                      PER CURIAM


Panel consists of Justices Jamison, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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