In Re: Michael Lynn Sims v. Appeal from 86th District Court of Kaufman County (memorandum opinion )

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Petition for Writ of Mandamus is DENIED; Opinion Filed March 15, 2013. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00049-CV IN RE MICHAEL LYNN SIMS, Relator On Appeal from the 86th District Court Kaufman County, Texas Trial Court Cause No. 17022 MEMORANDUM OPINION Before Justices Moseley, Francis, and Fillmore Opinion by Justice Moseley Relator contends the trial court violated a ministerial duty by not ruling or otherwise acting on his July 27, 2012 motion for DNA testing. The facts and issues are well known to the parties, so we need not recount them herein. Based on the record before us, we conclude the motion in question is repetitive of a motion filed by relator and ruled on by the trial court in 2009. Relator is not entitled to a writ of mandamus requiring the trial court to repeatedly rule on the same motion. See TEX. R. APP. P. 52.8(a); In re Birdwell, __ S.W.3d __, No. 10-12-00283CR, 2012 WL 6062673, at *7 (Tex. App Waco Dec. 6, 2012, orig. proceeding); In re Durden, No. 14-12-00143-CR, 2012 WL 590815, at *2 (Tex. App. Houston [14th Dist.] Feb. 23, 2012, orig. proceeding) (mem. op., not designated for publication). Accordingly, we DENY relator s petition for writ of mandamus. /Jim Moseley/ 130049F.P05 JIM MOSELEY JUSTICE

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