in Re: Francis Ewere ( 2014 )

DENY; and Opinion Filed February 27, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00221-CV
IN RE FRANCIS EWERE, Relator
Original Proceeding from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F97-22264-KU
MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Brown
Opinion by Justice Brown
In this inmate pleading, relator complains that the trial court has failed to rule on his
motion under Chapter 64 of the Texas Code of Criminal Procedure for DNA testing of the
biological materials collected during the investigation of his criminal case. The Court treats the
pleading as a petition for writ of mandamus. Relator alleges that he filed his motion in July 2013
and that it remains pending with no ruling. Relator includes no support for his complaint. To be
entitled to mandamus relief in a criminal case, the relator must show the trial court violated a
ministerial duty and that relator has no adequate remedy by appeal. See Simon v. Levario, 306
S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding); State ex rel. Hill v. Court of
Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). A
trial court has a ministerial duty to rule upon a motion that is properly presented to it for ruling.
See Simon, 306 S.W.3d at 321.
The courts of appeals have concurrent mandamus jurisdiction with the Court of Criminal
Appeals in post-conviction proceedings, including mandamus proceedings related to DNA
testing. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003). Mandamus will lie
to compel the trial court to follow the statute. Padilla, 122 S.W.3d at 808. Because relator’s
petition includes no supporting documents and does not include a proper certification, the record
before the Court does not support granting the writ. TEX. R. CIV. P. 52.3(j) & (k). Accordingly,
on the record before the Court, relator has not shown that he is entitled to the relief requested.
Accordingly, the Court DENIES the petition for writ of mandamus.
/Ada Brown/
ADA BROWN
JUSTICE
140221F.P05
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