in Re Damon Kendrick Dove

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 27, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00477-CR
IN RE DAMON KENDRICK DOVE, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
268th District Court
Fort Bend County, Texas
Trial Court Cause No. 12-DCR-061181A
MEMORANDUM OPINION
On July 6, 2020, relator Damon Kendrick Dove filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the presiding judge of the
268th District Court of Fort Bend County, to rule on relator’s motion for DNA
testing.
A jury found relator guilty of sexual assault and assessed punishment at 35
years’ imprisonment, this court affirmed relator’s conviction on appeal, and the
Texas Court of Criminal Appeals refused discretionary review. See Dove v. State,
No. 14-13-00686, 2014 WL 6602421, at *3, 6 (Tex. App.—Houston [14th Dist.]
Nov. 20, 2014, pet. ref’d) (mem. op., not designated for publication). In affirming
relator’s conviction, we observed that because relator admitted to having sex with
the complainant on the night of the offense, the issue before the court was whether
the evidence supported the jury’s finding that the complainant did not consent. Id.
at *3.
Relator subsequently filed two motions for DNA testing in the trial court. The
trial court denied the first motion on April 22, 2016, and the second motion on
September 15, 2017. Relator appealed the denial of his second motion for DNA
testing. See Dove v. State, No. 14-17-00722-CR, 2018 WL 3763182, at *1 (Tex.
App.—Houston [14th Dist.] Aug. 9, 2018, pet. ref’d) (mem. op., not designated for
publication). We noted that relator did not establish that identity was an issue and
DNA would not prove or disprove whether the sex was consensual and affirmed the
trial court’s order. Id. at *3.
Relator filed another motion for DNA testing in the trial court on May 14,
2019. The trial court has not taken any action on that motion.
To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494‒95 (Tex. Crim. App. 2017). A trial court has a
ministerial duty to consider and rule on motions properly filed and pending before
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it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d
381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). A relator must
establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked
to rule on the motion; and (3) failed or refused to rule on the motion within a
reasonable time. Id.
The trial court denied relator’s two previous motions for DNA testing, both
of which sought the same relief. Because there has been a full adjudication of two
previous motions for DNA testing, the trial court is not required to rule on relator’s
current motion. See in re Durden, No. 14-12-00143-CR, 2012 WL 590815, at *2
(Tex. App.—Houston [14th Dist.] Feb. 23, 2012, orig. proceeding) (mem. op., not
designated for publication) (“[N]o ruling is required in response to a subsequent
filing of a motion for DNA testing if there has already been a full adjudication in
connection with a prior motion for DNA testing, absent exceptional
circumstances.”); see also In re Cloud, Nos. 05-15-00223-CV & 05-15-00224-CV,
2015 WL 1021127, at *1 (Tex. App.—Dallas, Mar. 6, 2015, orig. proceeding) (mem.
op.) (holding trial court was not required to consider successive motions for DNA
testing after court had affirmed denial of motions three times); In re Flores, No. 05-
15-00634-CV, 2015 WL 3492317, *1 (Tex. App.—Dallas, June 3, 15, 2013, orig.
proceeding) (mem. op.) (“The trial court was not required, however, to rule on this
second motion when it had previously concluded that no biological material exists
to be tested” because absent “exceptional circumstances” a “trial court has no
ministerial duty to rule repeatedly on substantively identical motions seeking the
same relief.”); In re Sims, No. 05-13-00049-CV, 2013 WL 1273912, at *1 (Tex.
App.—Dallas, Mar. 15, 2013, orig. proceeding) (mem. op.) (holding that relator was
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not entitled to a ruling on motion for DNA testing where trial court had previously
ruled on same motion for DNA testing).1
Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus. We also dismiss as
moot relator’s motion for leave to file his petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Christopher, Jewell, Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
1
Relator also sought post-conviction relief through an application for writ of habeas
corpus. The trial court denied relator’s application and, in its findings of fact and conclusions of
law, found that relator admitted to having sex with the complainant on the night in question and
concluded that identity was not an issue due to relator’s confession to having had a sexual
encounter with the complainant on the night in question. The trial court denied relator’s
application on January 26, 2016.
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