Opinion
01-22-00014-CR
01-27-2022
IN RE ANTHONY LOUIS HARRISON, Relator
Do not publish. Tex.R.App.P. 47.2(b).
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
April Farris, Justice
Relator, Anthony Louis Harrison, incarcerated and proceeding pro se, has filed a petition for a writ of mandamus asserting that he filed in the trial court a motion "for DNA testing" pursuant to Texas Code of Criminal Procedure article 64, which has not been ruled on by the trial court, despite purportedly being filed approximately two years ago. Relator's mandamus petition requests that this Court compel the trial court to "proceed in the testing of the DNA that was used by the [S]tate to seek [its] conviction in [his case]."
Relator filed a petition for writ of mandamus seeking the same relief with this Court on October 1, 2021. On October 21, 2021, we denied relator's mandamus petition for failure to comply with the requirements of Texas Rule of Appellate Procedure 52. See Tex. R. App. P. 52 (setting out requirements for original proceedings filed with appellate courts).
We deny relator's petition for writ of mandamus.
The underlying case is Anthony Louis Harrison v. The State of Texas, Cause No. 635340, in the 230th District Court of Harris County, Texas, the Honorable Chris Morton presiding.
We note that a trial court has a ministerial duty to consider and rule on motions that are properly filed and pending before the court. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding). And where a trial court refuses to rule on such a motion, mandamus relief may be appropriate. See In re Molina, 94 S.W.3d 885, 886 (Tex. App.-San Antonio 2003, orig. proceeding). However, to establish that he is entitled to mandamus relief, relator must establish that: (1) the trial court had a legal duty to rule on the motion, (2) relator made a demand for the trial court to rule on the motion, and (3) the trial court failed or refused to rule on the motion within a reasonable time. See In re Layton, 257 S.W.3d 794, 795 (Tex. App.-Amarillo 2008, orig. proceeding).
Texas Rule of Appellate Procedure 52.3 outlines the pleading and record requirements for original proceedings, including petitions for writ of mandamus, filed in Texas appellate courts. See Tex. R. App. P. 52.3. Relator's mandamus petition asserts that "on October 9, 2019," he filed a motion "for DNA testing" pursuant to Texas Code of Criminal Procedure article 64, and the trial court has not ruled on or otherwise considered his motion since that time. However, relator's mandamus petition does not include an appendix or record which establishes that he is entitled to the relief he seeks in this Court. See Tex. R. App. P. 52.3(k) (relator required to provide appendix which "must contain" certified or sworn copy of any "document showing the matter complained of"), 52.7 (relator "must file" record with mandamus petition containing "certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding"), 52.8; see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (relator must provide mandamus record sufficient to establish right to mandamus relief).
Specifically, relator's petition for writ of mandamus fails to provide a record including the motion purportedly filed by relator on October 9, 2019, or any request, filed by relator, demanding that the trial court rule on his motion. Absent such evidence from relator, "we have no basis to determine that the motion[] w[as] properly brought" to the attention of the trial court, thus creating a ministerial duty to act. In re Molina, 94 S.W.3d at 886. And we are unable to determine whether the trial court has abused its discretion by failing or refusing to act on relator's motion. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding).
Accordingly, we deny relator's petition for writ of mandamus. See Tex. R. App. P. 52.8(a). We dismiss any other pending motions as moot.
We note that nothing in this opinion would prevent relator from refiling a petition for writ of mandamus accompanied by a record demonstrating that relator filed his motion "for DNA testing" with the trial court and requested a ruling on his motion.