Opinion
No. 13-05-632-CR
Memorandum Opinion delivered and filed October 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Petition for Writ of Mandamus.
Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
MEMORANDUM OPINION
Relator, Carlos Garza, a pro se inmate, requests we compel respondent, Judge Roberto Garza of the 138th District Court of Cameron County, to rule on relator's motion for forensic DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05). Relator alleges that over two months have passed since the filing of his motion and there has been no response from the trial court. When a motion is properly pending before a trial court, the act of considering and ruling upon it is a ministerial act. Eli Lilly Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). Before relator may be entitled to mandamus relief, however, he must provide a sufficient record to show the motion was presented to the trial court and it refused to act. In re Villarreal, 96 S.W.3d 708, 710 n. 2 (Tex.App.-Amarillo 2003, orig. proceeding) (filing something with the district clerk does not demonstrate that a motion has been brought to the trial court's attention). Relator's petition is not accompanied by a certified or sworn copy of the motion that is the subject of his complaint as required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(j)(1)(A). Because we do not have the motion before us, there is no evidence that relator's motion complied with the requirements of the DNA testing statute. See TEX. CODE CRIM. PROC. art. 64.01(a). Thus, we conclude he has not satisfied his procedural burden to show entitlement to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). Accordingly, relator's petition for writ of mandamus is denied.
Relator has also filed a motion to proceed in forma pauperis. Given our disposition of his petition for writ of mandamus, this motion is dismissed as moot.