                                NUMBER 13-13-00064-CR

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                                  IN RE MARK ESTRADA


                          On Petition for Writ of Mandamus.


                              MEMORANDUM OPINION

                 Before Justices Garza, Benavides, and Perkes
                      Memorandum Opinion Per Curiam1

       Relator, Mark Estrada, proceeding pro se, filed a petition for writ of mandamus

on January 31, 2013, through which he seeks to compel the trial court to conduct a

hearing and rule on relator’s motion for post-conviction DNA testing pursuant to Chapter

64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts.




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          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
64.01, 64.03 (West Supp. 2012). We deny the petition for writ of mandamus as stated

herein.

                                    I. BACKGROUND

      Appellant, was found guilty by a jury of murder. See Estrada v. State, No. 13-09-

00493-CR, 2011 Tex. App. LEXIS 6059, at *1 (Tex. App.—Corpus Christi Aug. 4, 2011,

pet. ref’d) (mem. op. not designated for publication); see also TEX. PENAL CODE ANN. §

19.02(b)(1) (West 2003).     He was sentenced to life imprisonment in the Texas

Department of Criminal Justice—Institutional Division. See Estrada, 2011 Tex. App.

LEXIS 6059, at *1. This Court affirmed the conviction and the Texas Court of Criminal

Appeals refused discretionary review.     See id.    Through this petition for writ of

mandamus, relator asserts that he requested post-conviction DNA testing from the trial

court pursuant to Chapter 64 of the Texas Code of Criminal Procedure. He complains

in this proceeding that the trial court has not conducted a hearing and issued a written

order pursuant to article 64.04 of the Texas Code of Criminal Procedure.

                                 II. MOTION FOR LEAVE

      Relator filed a “Motion for Leave to File Writ of Mandamus” along with his petition

for writ of mandamus. The Texas Rules of Appellate Procedure no longer require the

relator to file a motion for leave to file an original proceeding. See generally TEX. R.

APP. P. 52 & cmt.; see also In re Villa of Harlingen, No. 13-12-00570-CV, 2012 Tex.

App. LEXIS 9503, at 4 n.2 (Tex. App.—Corpus Christi Nov. 2, 2012, orig. proceeding)

(mem. op.).    Accordingly, relator's motion for leave to file his petition for writ of

mandamus is dismissed as moot.




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                                 III. STANDARD OF REVIEW

       To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007) (orig. proceeding). If relator fails to meet both of these requirements, then

the petition for writ of mandamus should be denied. See id.

       It is relator’s burden to properly request and show entitlement to mandamus

relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig.

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks.”). In addition to other requirements, relator

must include a statement of facts supported by citations to “competent evidence

included in the appendix or record,” and must also provide “a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that

relator must furnish an appendix or record sufficient to support the claim for mandamus

relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a)

(specifying the required contents for the record).

                                       IV. ANALYSIS

       Consideration of a motion that is properly filed and before the court is a

ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987)

(orig. proceeding). A relator must establish the trial court had a legal duty to rule on the

motion, was asked to rule on the motion, and failed to do so. In re Keeter, 134 S.W.3d



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250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d 708,

710 (Tex. App.—Amarillo 2003, orig. proceeding). Although a trial judge has a

reasonable time to perform the ministerial duty, that duty generally does not arise until

the movant has brought the motion to the trial judge's attention. In re Chavez, 62

S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).

                                       V. CONCLUSION

          Relator has not included with his petition any documentation showing that he has

requested the trial court to conduct a hearing and issue a written order pursuant to

article 64.04, or that the trial court has refused to grant his request. Thus, the Court,

having examined and fully considered the petition for writ of mandamus and the

applicable law, is of the opinion that relator has not met his burden to obtain mandamus

relief.    See State ex rel. Young, 236 S.W.3d at 210.       Relator’s petition for writ of

mandamus is DENIED. See TEX. R. APP. P. 52.8(a).




                                                                      PER CURIAM

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of February, 2013.




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