in Re: Cedric Millage ( 2023 )

DENY and Opinion Filed January 9, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01372-CV
IN RE CEDRIC MILLAGE, Relator
Original Proceeding from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-80247-07
MEMORANDUM OPINION
Before Justices Reichek, Carlyle, and Kennedy
Opinion by Justice Kennedy
In this original proceeding, relator seeks a writ of mandamus compelling the
trial court to conduct a hearing and make a finding regarding the results of post-
conviction DNA testing pursuant to Article 64 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 64.04. We deny 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). 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.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); TEX. R. APP.
P. 52.3, 52.7. Here, relator has filed with the petition only unauthenticated
documents, rather than certified or sworn copies of the motions and other relevant
documents as the rules require. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1); In re
Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding). Without
a properly authenticated record, relator has not carried his burden. See Butler, 270
S.W.3d at 758–59.
Additionally, relator has not included with his petition any documentation
showing that he has requested the trial court to conduct a hearing and issue a finding
pursuant to Article 64.04. Without such a showing, relator cannot demonstrate he is
entitled to mandamus relief for the trial court’s failure to act. See In re Perkins, 512
S.W.3d 424, 432 (Tex. App.—Corpus Christi 2016, orig. proceeding) (basic tenet of
mandamus practice requires relator to show demand for performance and refusal to
act).
Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.
52.8(a).
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
221372F.P05
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