in Re: Andrea Venior Johnson ( 2017 )

DENY in Part, DISMISS in Part, and Opinion Filed August 7, 2017.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00689-CV
IN RE ANDREA VENIOR JOHNSON, Relator
Original Proceeding from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F02-73542-MA
MEMORANDUM OPINION
Before Justices Francis, Brown, and Whitehill
Opinion by Justice Brown
Before the Court is relator’s June 19, 2017 petition for writ of mandamus in which relator
complains that the trial court has not ruled on his motion to appoint counsel and motion for DNA
testing. Relator also complains the trial court clerk and court reporter have not provided him
copies of the trial court’s records in his case. Relator’s petition is not properly certified as
required by rule 52.3(j) of the rules of appellate procedure and does not include an appendix and
record containing the necessary contents set out in rule 52.3(k)(1) and rule 52.7(a). TEX. R. APP.
P. 52.3(j), 52.3(k)(1)(a), 52.7(a). Although these deficiencies alone constitute sufficient reasons
to deny mandamus relief, in the interest of judicial economy we address the petition.
To be entitled to mandamus relief in a criminal matter, a relator must show that he has no
adequate remedy at law to redress his alleged harm, and 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). 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 (1) had a legal duty to rule on the motion;
(2) was asked to rule on the motion; and (3) failed to do so. In re Keeter, 134 S.W.3d 250, 252
(Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—
Amarillo 2003, orig. proceeding). It is relator's burden to provide the court with a record
sufficient to establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992);
TEX. R. APP. P. 52.3(k), 52.7(a).
Here, relator's petition does not include a record showing that he properly filed the
motions, that he requested a hearing on the motions or asked the trial court to rule, or that the
trial court has refused to rule. As such, relator has not established his entitlement to the
extraordinary relief of a writ of mandamus. See In re Florence, No. 14–11–00096–CR, 2011 WL
553241, at *1 (Tex. App.–Houston [14th Dist.] Feb. 17, 2011, no pet.) (absent proof that the
motions were properly filed, and that the trial court has been requested to rule on the motions but
refused to do so, relator has not established his entitlement to the extraordinary relief of a writ of
mandamus). Accordingly, we deny the petition for writ of mandamus as to relator’s request that
we order the trial court to rule on the motions.
As for relator’s request that this Court direct the trial court clerk and court reporter to
provide him with a copy of the record, this Court does not have jurisdiction to issue a writ of
mandamus against a district clerk unless it is necessary to enforce our own jurisdiction. TEX.
GOV’T CODE ANN. § 22.221(a) (West 2004) (court of appeals may only issue writ of mandamus
against district and county judges or as necessary to enforce jurisdiction of appellate court); In re
Wilkerson, No. 05-16-00322-CV, 2016 WL 1320815, at *1 (Tex. App.—Dallas Apr. 5, 2016,
orig. proceeding) (citing In re Simpson, 997 S.W.2d 939, 939 (Tex. App.—Waco 1999, orig.
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proceeding)). Relator has no appeal pending in this Court and, therefore, our jurisdiction is not
in jeopardy. Accordingly, we dismiss relator’s petition for writ of mandamus for want of
jurisdiction as to his request that we direct the trial court clerk and court reporter to provide him
a copy of the records in his case.
/Ada Brown/
ADA BROWN
JUSTICE
170689F.P05
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