Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 25, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-06-00578-CV
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IN RE MELVIN JONES, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On June 29, 2006, relator Melvin Jones, an inmate in the Wynne Unit of the Texas Department of Criminal Justice, filed a petition for writ of mandamus in this court,[1] seeking an order compelling the Honorable William Harmon, presiding judge of the 178th District Court of Harris County, to rule on relator=s motion for preservation and forensic testing of DNA evidence filed pursuant to Article 64 of the Texas Code of Criminal Procedure.
To establish that the trial court has abused its discretion, a relator must show the court 1) had a legal duty to perform a non‑discretionary act, 2) was asked to perform the act, and 3) failed or refused to do so. O=Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.CAmarillo 2001, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial, not discretionary. Ex parte Bates, 65 S.W.3d 133, 134B35 (Tex. App.CAmarillo 2001, orig. proceeding). However, even where a motion is properly filed, the trial court has a reasonable time within which to perform this ministerial duty. Id. at 135. Several factors are considered in determining the boundaries of a reasonable time period, such as the trial court=s actual knowledge of the motion and its overt refusal to act on it. Id. (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)). The trial court=s inherent power to control its own docket, a discretionary power, is included in the determination. Id.
A convicted person may file a motion for forensic DNA testing of evidence in the convicting court. See Tex. Code Crim. Proc. Ann. Art. 64.01 (Vernon Supp. 2006). The motion must be accompanied by an affidavit, sworn to by the convicted person. Id. Although relator attached a copy of his motion for DNA testing to his mandamus petition, there was no supporting affidavit attached; therefore, there is no evidence that relator=s motion complied with the requirements of Article 64.01, and we cannot conclude that the trial court abused its discretion or failed to perform a ministerial duty by failing to rule on it. See, e.g., In re Tucker, No. 08-05-00208-CR, 2005 WL 1488510, at *1 (Tex. App.CEl Paso June 23, 2005, orig. proceeding). Moreover, there is no evidence that relator requested the trial court rule on the motion nor that the trial court refused to act on it.
Because relator has failed to provide a record that shows he is entitled to the relief requested, we deny relator=s petition for writ of mandamus without prejudice to refiling with an adequate record. E.g., In re Molina, 94 S.W.3d 885, 886 (Tex. App.CSan Antonio 2003, orig. proceeding); see Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.CHouston [1st Dist.] 1992, orig. proceeding).
PER CURIAM
Petition Denied and Memorandum Opinion filed July 25, 2006.
Panel consists of Chief Justice Hedges, and Justices Yates and Guzman.
[1]See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.