Petition for Writ of Mandamus Denied and Memorandum Majority and

Dissenting Opinions filed October 14 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00524

- CR NO. 14

- 21

- 0052 5

- CR

IN RE ERSKIN K. HARRIS , Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 182nd District Court Harris County , Texas Trial Court Cause No s . 745707 & 737811



### MEMORANDUM MAJORITY OPINION

On September 16, 2021 , relator Erskin K. Harris filed a petition for writ of

m andamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relat or asks this Court to compel the Honorable Danilo Lacayo, presiding judge of the 182nd District Court of Harris County , to rule on his motion for DNA testing.2

To be entitled to mandamus relief, a relator must sho w (1) that the relator has no adequate remed y at la w f o r ob taining the relief the relator seeks; and (2) what the relator seeks to compel involves a min isterial act rather than a discretionary act. In re Powell , 516 S.W.3d 488, 494

– 95 (Tex. Crim. App. 201 7) (orig. proceeding). If a party properly file s a mo t io n with a trial court, the trial court has a ministerial duty to rule on the motion within a reasonable time after the motion has been submitted to the court for a ruling or after the party requested a ruling. In re Ramos , 598 S .W .3d 472, 473 (Tex. A pp.

— Ho us ton [14th Dist.] 2020, orig. proceeding) (ci ting In re Flanigan , 578 S.W.3d 634, 635

– 36 (Tex. App.

— Houston [14th Dist.] 2019, orig. proceeding) )

. Thereafter, if a trial court fails to rule, mandam us may issue to compel the tr ial court to ac t. Ram os , 59 8 S.W.3d at
473

. As the party seeking relief, i t is r elator ’ s burden to provide a sufficient record to establish that relator is entitled to mandamus relief. In re Gomez , 602 S.W.3d 71, 73 (Tex. A pp.

— Houston [14th Dist. ] 2020 , orig. proceed ing)

. For mandamus relief to be granted, the record must show (1) the motion was filed and brought to the attention of the respondent

- judge for a ruling, and (2) the respondent

-

judge has not ruled on the motion within a reasonable time afte r the motion ha s been sub m itted to the court for a ruling or after the party requested a ruling. See id

. In a criminal mand amus proceeding, t o establish that a motion was filed, a relator must provide the appellate court with either a file

- stamped copy of the motion or oth er pro o f that t he motion is, in fact, filed and pending in the trial

court. Id . at 74 (citing Flanigan , 578 S.W.3d at 6 36) ; In re Henry , 525 S.W.3d 381, 382 (Tex. App.

— Houston [14th Dist.] 2017, orig. procee ding). The copy of3

relator ’ s motion does no t bear a f i le stamp establishing that it is in fact pending in the trial court.

Even if relator had shown that his motion is properly pending, he has not demonstrated that the motion was brought to the attention of the trial court

. Like the motion, relato r has s ubm i tted a copy of a letter allegedly sent that do es not bear a file stamp to demonstrate presentment. The trial court is not required to consider a motion that has not been called to its attent ion by pro per means. Henry , 525 S.W.3d at 382. Moreo ver , re lator failed to inclu d e a jurat that satisfies the requirements of Tex. Civ. Prac. & Rem. Code § 132.001

. Relator has not established that he is entitled to mandamus relief. Accordingly , w e deny re lator ’ s peti tion for writ of mandamus

.

/s/ Randy Wilson Justice

Panel c onsists of Justices Jewell, Spain, and Wilson. (Spain, J., dissenting). Do Not Publish

— Te x. R. App. P. 47.2(b).