IN RE: EUSTORGIO GUZMAN RESENDEZ--Appeal from 139th District Court of Hidalgo County

 NUMBERS 13-05-583-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: EUSTORGIO GUZMAN RESENDEZ

On Petition for Writ of Mandamus

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Chief Justice Valdez

Relator Eustorgio Guzman Resendez, a pro se inmate, requests we compel the judge of the 139th District Court of Hidalgo County to rule on relator=s motion for forensic DNA testing 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). Relator alleges that over two years have passed since the filing of his motion and there has been no response from the trial court.[1]

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). Before relator may be entitled to mandamus relief, however, 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.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this the 21st day of September, 2005.

[1]In his petition for writ of mandamus, relator notes AAmong other things that have not been set for hearing is the appointment of Counsel . . . .@ Article 64.01(c) provides that the convicting court must appoint counsel for the convicted person if the person informs the court that he wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004 05). The language of the statute is mandatory. See Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003). Once the convicting court determines relator is indigent, the appointment of counsel is a purely ministerial act. Id. However, relator has not specifically complained that he has been denied his right to appointed counsel; instead, he complains only that this appointment has not been timely made.