IN RE: DANIEL GARZA--Appeal from 214th District Court of Nueces County

NUMBER 13-05-394-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE DANIEL GARZA

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On Petition for Writ of Mandamus __________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Per Curiam Memorandum Opinion[1]

Relator Daniel Garza, a pro se inmate, requests we compel the judge of the 214th District Court of Nueces County to rule on relator=s motion for DNA testing and for appointment of counsel pursuant to article 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05).

When a motion is properly pending before a trial court, the act of considering and ruling upon it is a ministerial act. Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). However, before relator may be entitled to mandamus relief, he must provide a sufficient record to show the motion was presented to the trial court and it refused to act. In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex. App.BAmarillo 2003, orig. proceeding) (filing something with the district clerk does not demonstrate that a motion has been brought to the trial court's attention). Relator's petition is not accompanied by a certified or sworn copy of the motion that is the subject of his complaint as required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.3(j)(1)(A). Thus, we conclude he has not satisfied his procedural burden to show entitlement to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).

Accordingly, relator's petition for writ of mandamus is denied.

PER CURIAM

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 14th day of July, 2005.