In Re: Micahel Lavon Gipson # 1173791--Appeal from 176th District Court of Harris County

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 10, 2006

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 10, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00773-CV

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IN RE MICHAEL LAVON GIPSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On September 8, 2006, relator Michael Lavon Gipson, an inmate in the Polunsky Unit of the Texas Department of Criminal Justice, filed a petition for writ of mandamus in this Court,[1] requesting we issue an order compelling (1) Charles Rosenthal, Harris County District Attorney, to transmit biological material to the trial court as required under Article 64.02 of the Texas Code of Criminal Procedure; and (2) the trial court to furnish all rulings or findings regarding relator=s post-conviction motion for DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.02 (Vernon Supp. Pamphlet 2006) (stating convicting court shall, on receipt of the motion, require the state to deliver evidence to the court or explain why it cannot deliver the evidence).

Regarding relator=s first request, this Court is empowered to issue writs of mandamus to enforce its jurisdiction, or against a judge of district or county courts within its appellate district. See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004). Because relator does not demonstrate that the writ against Rosenthal is necessary to enforce our jurisdiction, we do not have the authority to provide relator with the requested relief.

Regarding relator=s request for a writ against the trial court, he has failed to provide a record showing he is entitled to mandamus relief. To obtain mandamus relief, a relator must establish that the act sought to be compelled is ministerial and that he has no adequate remedy at law. Dickens v. Court of Appeals for the Second Supreme Judicial Dist., 727 S.W.2d 542, 548 (Tex. Crim. App.1987) (orig. proceeding). Here, relator provided this Court with copies of correspondence inquiring into the status of his motion that indicate an attorney was appointed to represent relator in the matter; however, relator failed to provide a copy of his post-conviction DNA motion and other documents which might establish that he is entitled to mandamus relief.

Accordingly, we deny relator=s petition for writ of mandamus against the trial court without prejudice to refiling with an adequate record.

PER CURIAM

Petition Denied and Memorandum Opinion filed October 10, 2006.

Panel consists of Chief Justice Hedges, and Justices Yates and Seymore.

[1]See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.