Opinion
No. 01-09-00143-CR
Opinion issued May 15, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
Original Proceeding on Petition for Writ of Mandamus.
Panel consists of Justices TAFT, BLAND, and SHARP.
MEMORANDUM OPINION
Relator, Frank Anthony Furtado, has filed a petition for writ of mandamus requesting that this Court compel respondent to rule on his motion for DNA testing in trial court cause number 699972. We deny the petition. First, relator's petition does not meet the requirements of the Texas Rules of Appellate Procedure. For example, it does not include an appendix that contains a certified or sworn copy of any order complained of, or any other document showing the matter complained of, and does not certify that a copy was served on respondent. See TEX. R. APP. P. 9.5, 52.3(j). Although we generously read a pro se litigant's petition in an original proceeding, that we will hold "the relator to the same procedural standards we apply to other litigants." Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). In this case, relator has not provided us with a record that shows that his motion for DNA testing was filed in the 230th District Court or that he made any request of respondent to perform a nondiscretionary act that respondent refused. See id. at 426. Because Relator has not provided us with a record that shows he filed any motions or otherwise requested relief from respondent, the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.3(j). It is so ORDERED.
Respondent is named as "The State of Texas." Relator is complaining that not action was taken on his motiont for DNA testing by the judge of the 230thDistrict Court. Relator has failed to serve or name the trial court judge as respondent. TEX. R. APP. P. 9.5, 52.3(j).
The certificate of service attached to relator's petition for writ of mandamus states that a copy of the petition for writ of mandamus was served on: M. Karinne McCullough, Clerk of the First Court of Appeals, 1307 San Jacinto, Houston Texas 77002. The certificate does not state that he served the entity, the State of Texas, that he named as respondent in his petition. Based on his complaint relator should have named the judge of the convicting court: Belinda Hill, Judge, 230th District Court, Harris County, Texas. See TEX. R. APP. P.9.5. We note that relator has incorrectly styled his petition: Frank Anthony Furtado, Relator v. The State of Texas, Respondent. Petitions for original proceedings are required to be captioned " In re [name of relator]." TEX. R. APP. P. 52.1.
See TEX. CODE CRIM. PROC. ANN. Art. 64 (Vernon 2006 and Supp. 2008).