Court of Appeals of Texas, Third District, Austin
PROCEEDING FROM MILAM COUNTY
Justices Puryear, Field, and Bourland
Olson Bourland, Justice
Tony Cervantes has filed a pro se petition for writ of
mandamus asking this Court to compel the trial court to rule
on his motion for DNA testing under Chapter 64 of the Code of
Criminal Procedure and for the appointment of counsel to
represent him in the proceeding. See Tex. Gov't
Code Ann. § 22.221; Tex. Code Crim. Proc. arts.
64.01-05; see also Tex. R. App. P. 52.1. For the
following reasons, we deny the petition.
obtain mandamus relief for the trial court's refusal to
rule on a motion, a relator must establish: (1) the motion
was properly filed and has been pending for a reasonable
time; (2) the relator requested a ruling on the motion; and
(3) the trial court refused to rule. In re
Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008,
orig. proceeding) (mem. op.); In re Hearn, 137
S.W.3d 681, 685 (Tex. App.-San Antonio 2004, orig.
proceeding). A relator must show that the trial court
received, was aware of, and was asked to rule on the motion.
In re Minton, No. 03-12-00693-CV, 2013 WL 812074, at
*1 (Tex. App.-Austin Feb. 27, 2013, orig. proceeding)
(applying these principles to request that Court compel trial
court to rule on request for counsel to assist with filing
motion for DNA testing); In re Blakeney, 254 S.W.3d
659, 661 (Tex. App.-Texarkana 2008, orig. proceeding); In
re Villarreal, 96 S.W.3d 708, 710 (Tex. App.-Amarillo
2003, orig. proceeding); Barnes v. State, 832 S.W.2d
424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig.
proceeding) (per curiam).
relator's burden to properly request and show entitlement
to mandamus relief. Walker v. Packer, 827 S.W.2d
833, 837 (Tex. 1992); In re Davidson, 153 S.W.3d
490, 491 (Tex. App.-Amarillo 2004, orig. proceeding); see
also Barnes, 832 S.W.2d at 426 ("Even a pro se
applicant for a writ of mandamus must show himself entitled
to the extraordinary relief he seeks."). In this regard,
the relator must provide the reviewing court with a record
sufficient to establish his right to mandamus relief. See
Walker, 827 S.W.2d at 837; In re Blakeney, 254
S.W.3d at 661-62; see also Tex. R. App. P.
52.7(a)(1) (relator must file with petition "a 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"), 52.7(a) (specifying required
contents for record), 52.3(k) (specifying required contents
asserts in his petition that he filed his motion for DNA
testing and request for the appointment of counsel in the
20th District Court of Milam County. Cervantes has attached
unofficial copies of his "Request for DNA Testing"
and "Request for Appointment of Counsel" with an
indigency affidavit attached, both of which are dated March
17, 2017, as well as a copy of a letter requesting that the
trial court file the documents. None of the documents that
Cervantes has provided to this Court contain a file stamp
from the trial court. Consequently, there is no way for us to
determine whether the motion for DNA testing and appointment
of counsel was properly filed, or if it was, the date on
which it was received by the clerk's office. See In
re Gallardo, 269 S.W.3d 643, 645 (Tex. App.-San Antonio
2008, orig. proceeding) (concluding unofficial copy of
document containing relator's motion to stay did not
establish motion was filed with trial court).
even if we assume that the motion was properly filed,
Cervantes has not demonstrated that the motion has been
brought to the trial court's attention or that the court
is aware of the application. See In re Hearn, 137
S.W.3d at 685 (simply filing matter with district clerk is
not sufficient to impute knowledge of pending pleading to
trial court). Although he attached a copy of a letter dated
May 15, 2017, purporting to notify the trial court's
clerk that he had not received any response to his March 17,
2017 request, that letter does not contain a file stamp from
the trial court (although it includes a request that a
file-stamped copy be returned to him). Cervantes has not
provided any other file-marked document that shows that he
brought the motion to the attention of the trial court.
See In re Sarkissian, 243 S.W.3d at 861 (mere filing
of motion with trial-court clerk does not constitute request
that trial court rule on motion). Moreover, Cervantes has
failed to provide anything indicating that the trial court
has refused to rule on the motion or has failed to rule
within a reasonable time.
a showing that the trial court is aware of the motion, has
been asked to rule on the motion, and has refused to do so,
Cervantes has not established entitlement to the
extraordinary relief of a writ of mandamus. See In re
Lucio, No. 03-12-00056, 2012 WL 593533, at *2 (Tex.
App.-Austin Feb. 23, 2012, orig. proceeding) (mem. op.)
(mandamus relief denied because relator failed to provide
copy of motion, any correspondence to district court
requesting ruling on motion, or anything ...