in Re: Joseph Henry Brown ( 2016 )

Denied and Opinion Filed December 1, 2016
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01389-CV
IN RE JOSEPH HENRY BROWN, Relator
Original Proceeding from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F13-53946-W
MEMORANDUM OPINION
Before Justices Francis, Lang, and Brown
Opinion by Justice Lang
Before the Court is relator’s November 28, 2016 petition for writ of mandamus in which
relator complains that the trial court has not ruled on a Chapter 64 motion for DNA testing that
realtor purportedly filed on August 15, 2016. Relator asks this Court to order the trial court to
rule on the motion. Relator’s petition is not certified as required by rule 52.3(j) of the rules of
appellate procedure and does not contain a certified or sworn record as required by Rule 52.7.
TEX. R. APP. P. 52.3(j), 52.7. Although these deficiencies alone constitute sufficient reason to
deny mandamus relief, in the interest of judicial economy we address the petition
To establish a right to mandamus relief in a criminal case, the relator must show that 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). Further, as the party
seeking relief, the relator has the burden of providing the Court with a sufficient mandamus
record to establish his right to mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863
(Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Walker v. Packer, 827 S.W.2d
833, 837 (Tex. 1992) (orig. proceeding); In re Chavez, 62 S.W.3d 225, 228, 229 (Tex. App.—
Amarillo 2001, orig. proceeding). A trial court has a ministerial duty to rule upon a properly
filed and timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of
Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed
and timely presented, a motion must be presented to a trial court at a time when the court has
authority to act on the motion. See In re Hogg–Bey, No. 05–15–01421–CV, 2015 WL 9591997,
at *1–2 (Tex. App.—Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not designated for
publication). To establish entitlement to mandamus relief for a trial court’s refusal to act, the
relator must provide evidence to establish that the trial court had a legal duty to perform a
ministerial act, relator made demand for performance, and the court refused to perform. Stoner
v. Massey, 586 S.W.2d 843, 846 (Tex. 1979); In re Chavez, 62 S.W.3d at 229. Relator has failed
to meet those requirements.
Here, the mandamus record does not include a certified or sworn copy of the trial court’s
docket sheet or other proof to establish relator filed the Chapter 64 motion, relator requested a
ruling or hearing on the motion, and that the trial court has failed to rule on relator’s motion.
TEX. R. APP. P. 52.3(k)(1)(a); 52.7(a). The absence of a mandamus record prevents this Court
from evaluating the circumstances of this case and the merits of relator’s complaints. Lizcano,
416 S.W.3d at 863 (Alcala, J. concurring); see also In re Chavez, 62 S.W.3d at 229; Barnes v.
State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).
Accordingly, we deny relator’s November 28, 2016 petition for writ of mandamus.
161389F.P05 /Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
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