Petition for Writ of Mandamus Denied and Memorandum Opinion filed February 

23, 2012.

In The

Fourteenth Court of Appeals

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NO. 14-12-00143-CR

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IN RE GERALD J. DURDEN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

248th District Court

Harris County, Texas

Trial Court Cause No. 905464

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

On February 13, 2012, relator Gerald J. Durden filed a petition for writ of 

mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. 

In the petition, relator asks this court to compel the Honorable Joan Campbell, presiding 

judge of the 248th District Court in Harris County, to rule on his motion for DNA testing. 

In 2002, relator was convicted of aggravated sexual assault of a child and this court 

affirmed his conviction. See Durden v. State, No. 14-02-00818-CR; 2003 WL 22143293 
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(Tex. App.—Houston [14th Dist.] Sept. 18, 2003, pet. ref’d) (mem. op., not designated for 

publication). 

In 2009, relator filed a pro se motion for post-conviction DNA testing of two hairs 

found on the complainant’s underwear. See Durden v. State, No. 14-09-00120-CR; 2010 

WL 454935 at *1 (Tex. App.—Houston [14th Dist.] Feb. 11, 2010, pet. ref’d) (mem. op., 

not designated for publication). The trial court denied relator’s motion on grounds that 

DNA testing was performed on the hairs in 2002. Id. Relator appealed the trial court’s 

order denying his motion for post-conviction DNA testing, and this court affirmed the trial 

court’s denial. Id. at *4.

On January 4, 2012, the Harris County District Clerk’s office forwarded a notice of 

appeal and letter of assignment to this court from relator in which he attempted to appeal 

the denial of another motion for DNA testing. That appeal was docketed under appellate 

case number 14-12-00006-CR. Relator’s appeal was subsequently dismissed because the 

record contained no appealable order. See Durden v. State, No. 14-12-00006-CR; 2012 

WL 359306 (Tex. App.—Houston [14th Dist.] Feb. 2, 2012, no pet. hist.) (mem. op., not 

designated for publication). 

The record in relator’s appeal reveals that relator filed at least three, possibly five 

motions for DNA testing requesting that the two hairs found in the complainant’s 

underwear be tested. The trial court denied each of relator’s motions, noting on one such 

denial that, ―Independent DNA was already done in 2002. In 2005, ct. denied motion for 

testing.‖ The record on appeal further reflects that the motion on which relator currently 

seeks a ruling requests the same testing that has been repeatedly denied by the trial court 

and affirmed by this court. Relator asks this court to issue writ of mandamus to compel 

the trial court to rule again on a motion the court has denied at least three times.

To be entitled to mandamus relief, a relator must show that he has no adequate 

remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, 
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not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial 

Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. 

proceeding). Consideration of a request or motion that is properly 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). A relator must establish the trial court (1) had a legal duty 

to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. In re 

Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding). A relator must 

show that the trial court received, was aware of, and asked to rule on the motion. In re 

Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). 

The Court of Criminal Appeals recognized that ―Chapter 64 does not prohibit a 

second, or successive, motion for forensic DNA testing[.]‖ Ex parte Baker, 185 S.W.3d 

894, 897 (Tex. Crim. App. 2006) (orig. proceeding). The issue in that original 

proceeding, however, was whether a statutory post-conviction writ of habeas corpus was 

available for complaints of ineffective assistance of counsel on a Chapter 64 motion for 

DNA testing. The court held it was not. Id. On the same day, the court further 

recognized in another original proceeding that ―it is conceivable that a convicted person 

who receives ineffective assistance of counsel in a DNA proceeding may be entitled to 

relief by way of a second DNA proceeding.‖ Ex parte Suhre, 185 S.W.3d 898, 899 (Tex.

Crim. App. 2006) (orig. proceeding).

That is not the issue presented here. Relator has argued repeatedly that the same 

evidence should be tested for DNA in order to show that someone else committed the 

assault. The trial court has denied relator’s motions at least three times. Relator 

appealed one of the denials and this court affirmed the trial court’s denial. 

No ruling is required in response to a subsequent filing of a motion for DNA testing 

if there has already been a full adjudication in connection with a prior motion for DNA 

testing, absent exceptional circumstances. See In re Angelo, No. 10-11-00338-CR; 2011 

WL 4389994 (Tex. App.—Waco Sep. 21, 2011, orig. proceeding) (mem. op.) (citing In re 
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Birdwell, 224 S.W.3d 864, 869–70 (Tex. App.—Waco 2007, orig. proceeding) (Gray, C.J. 

concurring)). Based on the facts of this case, the trial court is not required to repeatedly 

rule on the same motion. 

Accordingly, relator’s petition for writ of mandamus is denied.

PER CURIAM

Panel consists of Justices Seymore, Boyce, and Jamison.

Do Not Publish — TEX. R. APP. P. 47.2(b).