## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00042

- CR

IN RE JOHNIFER RAY MUMPHREY

Original Mandamus Proceeding

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
John ifer Ray Mumphrey has filed a pro se petition for a writ of mandamus asking this
Court to compel Judg e Alfonso Charles of the 124th Judicial District Court of Gregg County, Texas, to appoint Mumphrey counsel because he “is i ndigen t and wish es to submit a motion” for forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. W e deny Mumphrey’s petition for three reasons, including that he has failed to comply with the Texas Rules of Ap pe llate Procedure

. Fi rst, u nder the appellate rules governing mandamus proceedings , “[t]he person filing the petition must certify that he

. . . has reviewed the petition and concluded that every factual statement in the petition is supported by com petent ev idence included in the appendix or record.”
T EX . R. A PP . P. 52.3(j). The mandamus petition failed to contain a certification that each of Mumphrey’s factual statements was supported by competent evidence included in the appendix or record, as re quired by Rule 52.3(j).
Seco nd , Mumphrey claims that he has mailed several letters to the trial court seeking appointment of counsel but has received no response. Alt hough he attaches copies of the letters allegedly sent to the trial court, Rule 52.7(a)( 1) sta t es that a relator must file with the petition “a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding .” T EX . R. A PP . P. 52.7(a)(1) (emphasis added)

. Also, Rule 52.3( k )( 1)(A) sta tes , “ T he a ppendix must contain . . . a certified or sworn copy of any order complained of, or any other document showing the matter complained of .” T EX . R. A PP . P.3

52.3(k)(1)(A). The documents attached to Mumphrey’s petition do not appea r t o have been filed in the underlying proceeding and are neither certified nor sworn. Third, Mumphrey has the burden to properly request and show his entitlement to mandamus relief. See Barnes v. State , 832 S.W.2d 424, 426 (Tex. App.

— Housto n [1st Dist.] 19 92, orig. proceeding) (p er curiam) (“Even a pro se applicant for a writ of mandamus must
show himself entitled to the extraordinary relief he seeks.”). To do so, he must show that “he has no adequate remedy at law to redress his alleged ha rm” and “that wh at he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.” Sta te ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). “[C ]onsideration of a motion that is proper ly filed and before the court is [a] ministerial” act. State ex rel. Curry v . Gray , 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding); see In re Shaw , 175 S.W.3d 901, 904 (Tex . App.

— Texarkana 2005, orig. proceeding). H owever, before mandamus may issue, the relator must show that the trial court had a legal duty to per form a ministerial act, was asked to do so, and failed or refused to act.
In re Villarreal , 96 S.W.3d 708, 710 (Tex. App.

— Amarillo 2003, o rig. proceedi n g)

. The mere filing of a motion does not impose a ministerial duty on the trial court to appoint counse l. See
Ex parte Gutierrez , 337 S.W.3d 883, 889 (Tex. Crim. App. 2011) (“An indigent convicted person intending to fi le a motion for post

- conviction DN A t esting now has a limited right to appointed counsel.” ( E mphasis added) )

. Here, though, Mumphrey has not shown that his motion was properly presented to the trial cour t. See In re Blakeney , 254 S.W.3d 659, 662 (Tex. App.

— Texarkana 2008, o rig. proceedi ng)

. As a result, because nothing shows that the trial court4

has seen Mumphrey’s requests, Mumphrey has failed to demonstrate that the trial court had a legal duty to perform a ministerial act.

“ ‘ Because the record in a mandamus proceeding i s assembled b y t he parties,’ we must ‘st rictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the mandamus record.” In re Long , 607 S.W.3d 443, 445 (Tex. App.

— Texarkana 2020, orig. proceeding) (alter ation in original) (quo ting In re Smith , No. 05

- 19

- 00268

- CV, 20 1 9 WL 1305970, at *1 (Tex. App.

— Dallas Mar. 22, 2019, orig. proceeding) (mem. op.). For the foregoing reasons, w e conclude that Mumphrey has failed to comply with the Texas Rules of Appe llate Procedure and has not m et his burden to provide a record suff ic i en t to show himself entitled to mandamus relief

. We deny Mumphrey ’s p etition for a writ of mandamus

.

Jeff Rambin Justice Date Submitted: March 6 , 2023 Date Decided: March 7 , 202 3
Do Not Publish