IN RE: LEE VERT SMITH (2017)

MEMORANDUM OPINION

Lee Vert Smith ¹ has petitioned this Court for a writ of mandamus, seeking to have our Court compel a Bowie County district court to rule on Smith's request for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 64.01–.05 (West 2006 & West Supp. 2016). We will deny relief.

To be entitled to mandamus relief, the relator must show (1) that he has no adequate remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The relator is obligated to provide this Court with a record sufficient to establish his right to be granted mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding); see TEX. R. APP. P. 52.3. Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding); see also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) (“Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling.”).

The trial court is required to consider and enter a ruling on a properly filed motion within a reasonable period of time, once a ruling has been requested. In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.—Texarkana 2005, orig. proceeding). To obtain mandamus relief here, Smith must establish that (1) the motion was properly filed and had been pending for a reasonable time; (2) he requested a ruling on the motion; and (3) the trial court has either refused to rule or failed to rule within a reasonable time. See Blakeney, 254 S.W.3d at 661. “However, if a reasonable time has not yet passed, the trial court's failure to rule may not be a clear abuse of discretion.” Greenwell, 160 S.W.3d at 288.

Smith claims that, on January 24, 2017, he filed a second motion for DNA testing ² and that the 5th Judicial District Court has failed to rule on his motion within a reasonable time. However, Smith has failed to present us with a file-stamped copy of the motion. Therefore, Smith has failed to provide this Court with a record sufficient to establish that his motion was properly filed, it had been pending for a reasonable time, and that the trial court failed or refused to rule on it despite his request to do so. See Walker, 827 S.W.2d at 837; Blakeney, 254 S.W.3d at 661.

Because Smith has not shown himself entitled to mandamus relief, we deny his petition.

FOOTNOTES

1.   Smith was sentenced to twenty-five years' incarceration as the result of a plea bargain agreement pertaining to two charges of aggravated sexual assault of a child.

2.   This Court affirmed the trial court's denial of Smith's prior motions regarding DNA testing. See Lee Vert Smith v. The State of Texas , cause numbers 06-16-00095-CR, 06-16-00096-CR (Tex. App.—Texarkana 2016, no pet.), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3d0d3e36-6b6b-4230-9dac-8efc162900fb&coa=coa06&DT=Opinion&MediaID=27141d6a-610c-40e8-95f2-7bb51cb3d920 and http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=ef3275f5-74ab-4673-beb6-062125a7a054&coa=a06&DT=Opinio n&MediaID=896092f2-09da-4f36-b554-5ab241a0f986.

Josh R. Morriss, III Chief Justice