IN RE: EARL KING (2017)

MEMORANDUM OPINION

Earl King has filed a petition for writ of mandamus notifying this Court that he filed a motion for DNA testing on December 26, 2016, and that he “sent a letter to the court for a status on his D.N.A. motion” on March 10, 2017. In his petition for writ of mandamus, King asks this Court to order the judge of the 202nd Judicial District Court of Bowie County to respond to his motion for DNA testing.¹ We deny King's petition for writ of mandamus.

It is King's burden to properly request and show his entitlement to mandamus relief. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”). With respect to his request, King must show that he has no adequate remedy at law to redress his alleged harm and that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. See 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).

Consideration of a motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding); see In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig. proceeding). However, a relator seeking a writ of mandamus must include a statement of facts supported by citations to “competent evidence included in the appendix or record” and must also provide “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, a relator is required to file a certified or sworn copy of every document that is material to his claim for relief. See TEX. R. APP. P. 52.3(k), 52.7(a).

King has not filed any mandamus record with the Court, and nothing besides King's assertion in his petition indicates when he filed a motion for DNA testing with the trial court. The absence of a mandamus record prevents us from evaluating the circumstances of this case and, consequently, the merits of King's complaints. See TEX. R. APP. P. 52.7; Barnes, 832 S.W.2d at 426. Moreover, the trial court has informed this Court that on March 20, 2017, it ordered the State to file a response to King's motion for DNA testing within sixty days. Accordingly, to the extent King's petition for writ of mandamus seeks “a status on his D.N.A. motion,” that complaint has been remedied; the status of the motion is that it is currently pending. To the extent the motion complains of the trial court's failure to rule, nothing suggests that the trial court has had ample time to do so.

Accordingly, we deny King's petition for writ of mandamus.

FOOTNOTES

1.   The petition for writ of mandamus does not ask this Court to order the trial court to rule on the motion for DNA testing.

Bailey C. Moseley Justice