in Re: Babu Samuel Kalluvilayil ( 2013 )

DENY in part, DISMISS in part; and Opinion Filed November 18, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01468-CV
IN RE BABU SAMUEL KALLUVILAYIL, Relator
Original Proceeding from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F91-00956-TH
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Evans
Opinion by Justice Lang-Miers
In this original proceeding, relator contends the trial court has violated a ministerial duty
by not ruling on relator’s motions for post-conviction DNA testing, discovery, appointment of
counsel, free copies of the record, and his indigence. Relator also contends the trial court
violated a ministerial duty by not making findings of facts and conclusions of law or having an
evidentiary hearing on his application for post-conviction writ of habeas corpus.
Relator has the burden to show he is entitled to mandamus relief by showing (1) the act
he seeks to compel is ministerial and does not involve a discretionary or judicial decision, and
(2) he has no adequate remedy at law. See Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim.
App. 2009) (orig. proceeding). Relator did not attach to his petition any of the motions he
contends he has filed and the trial court has failed to rule on. Thus, we conclude relator has not
shown he is entitled to mandamus relief. See id.; see also TEX. R. APP. P. 52(k).
Moreover, this Court has no jurisdiction over relator’s complaints regarding the trial
court’s failure to make findings of fact or conduct an evidentiary hearing on his application for
post-conviction writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. arts. 11.05, 11.07
(West 2005); In re McFee, 53 S.W.3d 715, 717–18 (Tex. App.––Houston [1st Dist.] 2001, orig.
proceeding) (per curiam).
Accordingly, we dismiss relator’s complaints regarding his post-conviction writ of
habeas corpus for want of jurisdiction. We deny relator’s petition for writ of mandamus to the
extent he complains of the trial court’s failure to rule on his motions.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
131468F.P05
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