Petition for Writ of Mandamus Denied and Mem orandum Opinion filed December

13 , 2012.

In The



## Fourteenth Court of Appeals

NO. 14
- 12
- 01073
- CR

IN RE JACKIE WILSON , Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS On Appeal from the 212th District Court Galve ston County , Texas Trial Court Cause No. 97CR1838



### MEMORANDUM OPINION
R elator Jackie Wilson, an inmate confined in the Institutional Division of the Texas Department of Criminal Justice, filed a pro se petition for writ of m andamus in this

c ourt. See Tex. Gov’t Code § 22.221 ; see also Tex. R. App. P. 52. In the petition, relator ask s this c ourt to compel the Honorable Susan Criss, presiding judge of the 212th District Court in Galveston County , to conduct a hearing and sign a written order concerning the

re sults of post

- conviction DNA testing , pursuant to Chapter 64 of the Texas Code of Criminal Procedure

.2

In 1999, after a jury convicted relator of murder, he was sentenced to sixty years in prison. See Wilson v. State, No. 14

- 99

- 01077

- CR, 2001 WL 726448 (Tex . App.

— Houston [14th Dist.] Jun. 28, 2001, pet. ref’d) (not designated for publication). This court affirmed his conviction, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Id. Relator asserts that he requested post

- conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure

. He also asserts that favorable results were obtained for some of the samples tested. He complains in this proceeding that the trial court has not conducted a hearing and issued a written order pursuant to article 64.04 of the Texas Code of Criminal Procedure. To be entitled to mandamus relief in a criminal case, a relator must show that he has no adequate remedy at law to redress his alleged harm, and that what he seeks t o compel is a ministerial act, not involving a discr etionary 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 motion that is p roperly 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 had a legal duty to rule on the motion , was asked to rule on the m otion , and failed to do so. In re Keeter , 134 S.W.3d 250, 252 (Tex. App.

— Waco 2003, orig. proceeding); In re Villarreal , 96 S.W.3d 708, 710 (Tex. App.

— Amarillo 2003, orig. proceeding). A lthough

a trial judge has a reasonable time to perform the ministerial duty , that duty generally does not arise until the movant has brought the motion to the trial judge’s attention

. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.

— Amarillo 2001, orig. proceeding).
R elator has not included with his petition any documentation sh owing that he has requested the trial court to conduct a hearing and issue a written order pursuant to article 64.04 , but the trial court has refused to grant his request. Relator did not include a copy of a motion requesting a hearing with his petition. R elator provided a copy of the State’s reply to his November 30, 2011, motion requesting a hearing. According to the State,3

relator did not request re

- testing of evidence in his motion , but instead, requested a hearing on the results of the DNA testing that was performed before relator’s trial. Chapter 64 does not provide a mechanism for a defendant to request a hearing on DNA results from testing done before trial.
R elator has not established that he is entitled to mandamus relief. W e deny relator’s petiti on for writ of mandamus.

PER CURIAM

Panel consists of Justices Frost, Christopher , and Jamison

. Do Not Publish

— Tex. R. App. P. 47.2(b).