in Re Gerald J. Durden ( 2016 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
November 29, 2016.
In The
Fourteenth Court of Appeals
NO. 14-16-00924-CR
IN RE GERALD J. DURDEN, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
248th District Court
Harris County, Texas
Trial Court Cause No. 905464
MEMORANDUM OPINION
On November 15, 2016, relator Gerald J. Durden 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 Honorable
Katherine Cabaniss, presiding judge of the 248th District Court of Harris County,
to rule on his motion for DNA testing and appointment of counsel.
To be entitled to mandamus relief, a relator must show that he has no
adequate remedy at law to redress his alleged harm, and what he seeks 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 a court is a ministerial act. State ex rel. Curry v. Gray,
726 S.W.2d 125, 128 (Tex. Crim. App. 1987 (orig. proceeding) (op. on reh’g). 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. In re Layton, 257 S.W.3d 794, 795 (Tex. App.—
Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—
San Antonio 2003, orig. proceeding).
In 2002, relator was convicted of aggravated sexual assault of a child.
Durden v. State, No. 14-02-00818-CR, 2003 WL 22143293, at *1 (Tex. App.—
Houston [14th Dist.] Sept. 18, 2003, pet. ref’d) (mem. op., not designated for
publication). This court affirmed relator’s conviction. Id. at *3. In 2008, relator
filed a pro se motion for post-conviction DNA testing of two hairs found on the
complainant’s underwear. Durden v. State, No. 14-09-00120-CR, 2010 WL
454935, at *1 (Tex. App.—Houston [14th Dist.] Feb. 11, 2010, pet. ref’d) (mem.
op., not designated for publication). The trial court denied relator’s motion, and
this court affirmed the denial of the motion on appeal. Id. at *4.
In 2012, relator filed a petition for writ of mandamus in this court,
complaining of the trial court’s failure to rule on his motion for DNA testing. See
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In re Durden, No. 14-12-590815, 2012 WL 590815 (Tex. App.—Houston [14th
Dist.] Feb. 23, 2012, orig. proceeding) (mem. op., not designated for publication).
This court observed that the record in the appeal from the denial of the motion for
DNA testing showed that relator had filed “at least three, possibly five motions for
DNA testing requesting that the two hairs found in the complainant’s underwear to
be tested.” Id. Furthermore, the motion, which was the subject of the mandamus
proceeding, requested the same testing that had been repeatedly denied by the trial
court and affirmed by this court. Id. Relator asked this court to issue a writ of
mandamus to compel the trial court to rule on a motion the court had denied at
least three times. Id. In denying relator’s petition, this court explained that “no
ruling is required in response to a subsequent filing of a motion for DNA testing if
there has already been a full adjudication in connection with a prior motion for
DNA testing, absent exceptional circumstances.” Id. at *2. Relator had argued
repeatedly that the same evidence should be tested for DNA to show that someone
else had committed the assault. Id.
Here, relator asked the trial court to rule on another motion for DNA testing.
The trial court had denied relator’s other motions at least three times, and relator
appealed one of those motions. See id. Absent exceptional circumstance, we
conclude that the trial court had no duty to rule on relator’s latest motion for DNA
testing.
Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
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PER CURIAM
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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