in Re Destyn David Frederick ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00855-CR
IN RE Destyn David FREDERICK
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Beth Watkins, Justice
Delivered and Filed: December 18, 2019
PETITION FOR WRIT OF MANDAMUS DENIED
Relator filed a petition for writ of mandamus complaining the trial court has refused to rule
on his “Motion for Court’s Permission to File Post-Conviction Forensic DNA Testing” and his
“Application for Commutation of Sentence.” Because relator did not provide this court with a
sufficient record, we deny the petition for writ of mandamus.
DISCUSSION
To establish a right to mandamus relief in a criminal case, the relator must show the trial
court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel. Weeks,
391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). A trial court has a ministerial
1
This proceeding arises out of Cause No. 11-09-00041-CRL, styled The State of Texas v. Destyn David Frederick,
pending in the 81st Judicial District Court, La Salle County, Texas, the Honorable Donna S. Rayes presiding.
04-19-00855-CR
duty to rule on a properly-filed and timely-presented motion. See In re State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
However, a relator has the burden of providing this court with a record sufficient to
establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a)(1) (requiring relator to file “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”). In a case such as this one, a relator has the burden to
provide the court of appeals with a record showing the motion at issue was properly filed, the trial
court was made aware of the motion, and the motion has not been ruled on by the trial court for an
unreasonable period of time. See In re Mendoza, 131 S.W.3d 167, 167-68 (Tex. App.—San
Antonio 2004, orig. proceeding).
Here, relator did not provide this court with a copy of his pleadings, a copy of the trial
court’s docket, or any proof indicating the trial court is aware of the pleadings. Also, relator did
not provide a record establishing his pleadings have awaited disposition for an unreasonable time.
Id. Because relator did not provide this court with a sufficient record, relator has not shown himself
entitled to mandamus relief. Accordingly, the petition for writ of mandamus is denied.
We deny as moot relator’s request to file a petition for writ of mandamus because leave is
not required to file a petition in an intermediate appellate court. See TEX. R. APP. P. 52.1; In re
Medina, 04-19-00041-CR, 2019 WL 360534, at *1 (Tex. App.—San Antonio Jan. 30, 2019, no
pet.).
PER CURIAM
Do not publish
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