Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 291st Judicial District Court
Dallas County, Texas, Trial Court Cause No. F01-53637-JH
Justices Whitehill, Partida-Kipness, and Pedersen, III.
the Court is Jerome Johnson's June 19, 2019 petition for
writ of mandamus requesting the Court to compel the trial
court to rule on his December 14, 2018 motion seeking
additional DNA testing and appointment of counsel. We deny
2003, a jury convicted relator of sexual assault and assessed
punishment at forty-two years' confinement and a $7, 500
fine. In 2005, this Court affirmed the judgment. See
Johnson v. State, No. 05-03-01058-CR, 2005 WL 647516
(Tex. App.-Dallas Mar. 22, 2005, pet. ref'd).
December 14, 2018 motion for post-conviction DNA testing
asserts there are items in the State's possession that
either have not been tested or should be retested using
modern techniques and that DNA testing would establish his
innocence. The trial court issued an order on February 4,
2019 directing the State to file a response to relator's
motion within 60 days. At the same time, the trial court also
issued an order denying appointment of counsel.
February 28, 2019, relator filed an objection to the trial
court's denial of his motion to appoint counsel. Relator
has provided non-file-marked copies of a request for the
trial court to take judicial notice of alleged errors in the
reporter's record of his trial, a motion for
"default judgment" against the State, and a motion
to compel against the State for not responding to the trial
court's February 4, 2019 order. The motions represent
they were mailed to the trial court on April 24, 2019 and
April 29, 2019. Relator has also filed a letter dated May 6,
2019 complaining about the failure to rule on the DNA testing
motion and the objection to denial of appointment of counsel.
relief is appropriate in a criminal case only when a relator
establishes (1) that relator has no adequate remedy at law to
redress the alleged harm, and (2) that relator seeks to
compel a ministerial act. State ex rel. Young v. Sixth
Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007) (orig. proceeding). A trial court has
a ministerial duty to rule upon a properly filed and timely
filed motion. Id. To qualify for mandamus relief,
the relator must show (1) the trial court has a legal duty to
rule on the motion; (2) the relator had made a demand for
performance; and (3) the trial court has refused to act.
See In re Mendoza, 467 S.W.3d 76, 78 (Tex.
App.-Houston [1st Dist.] 2015) (orig. proceeding). The trial
court must be afforded a reasonable time to perform its
ministerial duty. See In re Chavez, 62 S.W.3d 225,
228 (Tex. App.-Amarillo 2001) (orig. proceeding). The time
period considered reasonable depends upon the circumstances
of each case and may involve consideration of criteria such
as the trial court's actual knowledge of the motion,
whether it has overtly refused to act on the matter, the
state of the trial court's docket, and the existence of
more pressing judicial and administrative matters.
Id. at 228-29. Relator bears the burden to provide
the appellate court with evidence weighing on the criteria to
consider in assessing the reasonableness of the alleged
delay. Id. at 229.
case, it appears that the delay is attributable more to the
State than the trial court. The trial court has taken
preliminary steps to rule upon relator's motion by
issuing an order to request a response from the State and an
order denying relator's request for counsel. See
Tex. Code Crim. Proc. Ann. art. 64.02(a) (requiring trial
court to request response from State after receiving motion
for post-conviction DNA testing). When the State does not
respond in a timely manner, the trial court may, but is not
required to, proceed without a response. See id. at
art. 64.02(b). Furthermore, on July 15, 2019, court-appointed
counsel entered an appearance in this case and other pending
cases. The trial court has, thus, reversed its order denying
a request for counsel.
has not filed any evidence that would allow the Court to
consider the state of the trial court's docket and other
pending matters. From relator's filings in this case and
two other mandamus actions pending before this Court, we note
that relator has placed before the trial court several
lengthy filings requiring rulings.
conclude the record does not show the trial court is refusing
to rule on relator's request. We further conclude that
relator has not shown that, under the circumstances
presented, a reasonable time to rule upon the pending motion
has expired. See Chavez, 62 S.W.3d at 228-29.
we deny relator's petition for writ of mandamus.