IN RE: CARLOS GARZA--Appeal from 138th District Court of Cameron County

NUMBER 13-05-632-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE CARLOS GARZA

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On Petition for Writ of Mandamus ___________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Per Curiam Memorandum Opinion

Relator, Carlos Garza, a pro se inmate, requests we compel respondent, Judge Roberto Garza of the 138th District Court of Cameron 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 months have passed since the filing of his motion and there has been no response from the trial court.

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). Because we do not have the motion before us, there is no evidence that relator=s motion complied with the requirements of the DNA testing statute. See Tex. Code Crim. Proc. art. 64.01(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.[1]

PER CURIAM

Do not publish.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

Memorandum Opinion delivered and filed

this 17th day of October, 2005.

[1]Relator has also filed a motion to proceed in forma pauperis. Given our disposition of his petition for writ of mandamus, this motion is dismissed as moot.