                                   NO. 07-08-0416-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                OCTOBER 21, 2008
                         ______________________________


                          IN RE BARRY DWAYNE MINNFEE,

                                                     Relator
                       _________________________________

              ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
                      _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.,

       Pending before this court is the application of Barry Dwayne Minnfee for a writ of

mandamus. He requests that we compel “[the] trial court to determine was [sic] indigent

and if so appoint an attorney to represent [Minnfee] on this motion for forensic DNA

testing,” among other things. We deny the application for the reasons that follow.

       First, rules of procedure obligate one seeking mandamus relief to accompany his

petition with an appendix. TEX . R. APP. P. 52.3(j). The latter must include, among other

things, a certified or sworn copy of the document showing the matter complained of. In this

case, the document showing the matter complained of would be the motion requesting

DNA testing and the need for appointed counsel. This Minnfee failed to do.

       Second, nothing of record indicates that the motion for DNA testing and request for

appointed counsel was brought to the attention of the district court. Simply put, before
mandamus relief may issue, the petitioner must establish that the district court 1) had a

legal duty to perform a non-discretionary act, 2) was asked to perform the act, and 3) failed

or refused to do it. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In

re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). Given this,

it is encumbent upon Minnfee to illustrate that the district court received and was aware of

his motion.1 This is so because a court cannot be faulted for doing nothing when it is or

was unaware of the need to act. Here, Minnfee states in his petition that he “directed” the

motion to the district court on June 9, 2008, but whether the court was ever made aware

of it is unknown. Lacking that information, we cannot simply assume that the district court

knew of its duty to act and neglected to perform it. Thus, Minnfee has not fulfilled his

burden to illustrate that the trial court refused to act.

        Accordingly, the application for writ of mandamus pending before this court is

denied.



                                                             Per Curiam




        1
         Filing som ething with the district clerk does not m ean the trial court knows of it. Nor is that clerk’s
knowledge im puted to the trial court. In re Chavez, 62 S.W .3d 225, 228 (Tex. App.–Am arillo 2001, orig.
proceeding). Thus, Minnfee m ust prove that the trial court received notice of the pleading. Id. Merely alleging
that som ething was filed with or m ailed to the district clerk does not satisfy that requirem ent. Id.
