in Re Robert Moreno, Jr. ( 2011 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November
17, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-11-00971-CR
NO. 14-11-00972-CR
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IN RE ROBERT MORENO, JR., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
263rd District Court
Harris County, Texas
Trial Court Cause Nos. 0807407 & 0807408
MEMORANDUM OPINION
On November 7, 2011, relator Robert Moreno, Jr. filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.
Relator complains that respondent, the Honorable Jim Wallace, presiding judge of the
263rd District Court of Harris County, has not ruled on his motion for post-conviction
forensic DNA testing. See Tex. Code Crim. Proc. art. 64.01—64.05.
To be entitled to mandamus relief in a criminal case, a relator must show that he has
no adequate remedy at law to redress his alleged harm, and that what he seeks to compel 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 the
court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim.
App. 1987) (orig. proceeding). A relator must establish the trial court (1) had a legal duty
to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. In re
Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal,
96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding) (relator must show that
trial court received, was aware of, and was asked to rule on motion).
Relator has not provided this court with any evidence that his motion for DNA
testing was properly filed with the trial court and presented to the judge for a ruling. It is
relator’s burden to provide this court with a record sufficient to establish his right to relief.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.3(k), 52.7(a).
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).
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