Opinion issued April 21, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-01012-CR
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IN RE MIKE MENDOZA, JR., Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION
Relator, Mike Mendoza, Jr., proceeding pro se and incarcerated, filed a
petition for a writ of mandamus on December 22, 2014, which was assigned cause
number 01-14-01012-CR, seeking to compel the respondent, the Honorable Denise
Bradley, to rule on his pending post-conviction motion for forensic DNA testing.1
1
The underlying trial court cause is Ex parte Mike Mendoza, Jr., Cause No.
952290-B, in the 262nd Judicial District Court of Harris County, Texas, the
Honorable Denise Bradley presiding. In 2004, we affirmed Mendoza’s
murder conviction. See Mendoza, Jr. v. The State of Texas, No. 01-03-
On January 27, 2015, this Court’s memorandum opinion denied Mendoza’s
mandamus petition on the ground that the trial court had neither a duty nor
jurisdiction to rule on his free-floating motion since neither his habeas application
nor criminal case were apparently pending. See In re Mike Mendoza, Jr., Nos. 01-
14-01012-CR, 01-14-01013-CR, 2015 WL 448146, at *1 (Tex. App.—Houston
[1st Dist.] Jan. 27, 2015, orig. proceeding) (mem. op., not designated for
publication).
Mendoza has timely filed 2 a motion for en banc reconsideration only of the
portion of our memorandum opinion which denied his mandamus petition assigned
to cause number 01-14-01012-CR.3 Mendoza’s motion claims that his mandamus
petition properly served the district attorney’s office and that his underlying felony
habeas application, filed in 2010 under Texas Code of Criminal Procedure Article
11.07 in trial court cause number 952290-B, has remained pending since 2011.
00783-CR, 2004 WL 2538280, at *6 (Tex. App.—Houston [1st Dist.] Nov.
10, 2004, no pet.) (mem. op., not designated for publication).
2
Although Mendoza’s motion was filed on February 12, 2015, it was timely
filed because it was received within the 10-day period allowed for mailing
after his February 11, 2015 deadline. See TEX. R. APP. P. 9.2(b)(1)(A), 49.7.
3
Our memorandum opinion addressed both cause number 01-14-01012-CR
and cause number 01-14-01013-CR because both cause numbers involve
petitions for writ of mandamus filed by Mendoza arising from trial court
cause number 952290-B and naming Judge Bradley as the respondent.
2
We withdraw our January 27, 2015 memorandum opinion and issue the
following opinion for cause number 01-14-01012-CR, and we dismiss Mendoza’s
motion for en banc reconsideration as moot. See Brookshire Bros., Inc. v. Smith,
176 S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on
reh’g) (motion for en banc reconsideration becomes moot when panel issues new
opinion and judgment). 4 However, our disposition remains the same as we deny
Mendoza’s mandamus petition.
In Mendoza’s petition, he seeks to compel the respondent trial court to rule
on his pending post-conviction motion for forensic DNA testing under Chapter 64
of the Texas Code of Criminal Procedure, which he claims was filed in May 2013.
Assuming, without deciding, that we have jurisdiction over this petition, although
Mendoza contends that his motion was filed in a pending felony habeas
application, we deny the petition. Cf. Padieu v. Ct. of Appeals of Tex., Fifth Dist.,
392 S.W.3d 115, 117—18 (Tex. Crim. App. 2013).
To be entitled to mandamus relief with respect to a criminal law matter, the
relator must show that he has no adequate remedy at law to redress his alleged
harm and that the act he seeks to compel is ministerial. See In re State ex rel.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding); see also
In re Garrett, Nos. 14-14-00669-CR, 14-14-00670-CR, 2014 WL 4207148, at *1
4
We are sua sponte issuing a separate memorandum opinion for cause
number 01-14-01013-CR.
3
(Tex. App.—Houston [14th Dist.] Aug. 26, 2014, orig. proceeding) (mem. op., not
designated for publication) (denying mandamus petition seeking to compel
respondent trial court to rule on relator’s pending post-conviction DNA testing
motion). Generally, there are three prerequisites for the issuance of a writ of
mandamus by an appellate court with respect to a ministerial duty: (1) the lower
court must have a legal duty to perform a nondiscretionary act; (2) the relator must
have made a demand for performance; and (3) the subject court must have refused
that request. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st
Dist.] 1992, orig. proceeding) (denying mandamus petition where relator did not
ask for a hearing on his motions or take any action to alert trial court that it had not
yet considered his motions); see also In re McKelvey, Jr., No. 01-09-00199-CR,
2009 WL 1563000, at *1 (Tex. App.—Houston [1st Dist.] June 3, 2009, orig.
proceeding) (mem. op., not designated for publication). “While a trial court has a
ministerial duty to rule upon a motion that is properly and timely presented to it for
a ruling, in general it has no ministerial duty to rule a certain way on that motion.”
In re State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236
S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding) (internal quotation
marks and citation omitted); see also In re Garrett, 2014 WL 4207148, at *1.
“Consequently, mandamus is available to compel a trial court to make a ruling
within a reasonable time.” Barnes, 832 S.W.2d at 426.
4
Mendoza, however, has not provided us with a record that demonstrates his
entitlement to mandamus relief. “The relator generally must bring forward all that
is necessary to establish a claim for relief.” In re Potts, 399 S.W.3d 685, 686 (Tex.
App.—Houston [14th Dist.] 2013, orig. proceeding); see also TEX. R. APP. P.
52.3(k)(1)(a), 52.7(a)(1); In re Garrett, 2014 WL 4207148, at *1.
First, Mendoza’s one-page mandamus petition, to which he attached
uncertified and unsworn copies of his motion papers, does not meet the
requirements of the Texas Rules of Appellate Procedure. For example, it does not
include an appendix or record that contains a certified or sworn copy of every
document that is material to Mendoza’s claim for relief and that was filed in any
underlying proceeding, such as his motion for DNA testing, and any order
complained of, or any other document showing the matter complained of, and does
not certify that copies of his petition were served on all parties, including the
respondent trial court and real party in interest. See Barnes, 832 S.W.2d at 426;
see also TEX. R. APP. P. 9.5(a), 52.2, 52.3(j), 52.7(a)(1), (c); In re McKelvey, Jr.,
2009 WL 1563000, at *1. Additionally, Mendoza’s petition does not conform to
Rule 52.3 in that the petition does not contain a table of contents, an index of
authorities, and a statement that the person filing the petition certifies that he has
reviewed the petition and concluded that every factual statement in the petition is
supported by competent evidence included in the appendix or record. See Barnes,
5
832 S.W.2d at 426; see also In re McKelvey, Jr., 2009 WL 1563000, at *1 (citing
TEX. R. APP. P. 52.3(b), (c), (j)).
Second, “[a]lthough we will generously read the [pro se] relator’s petition,
we will hold the relator to the same procedural standards we apply to other
litigants.” Barnes, 832 S.W.2d at 426. Here, although Mendoza asserts in his
petition that he filed a motion for DNA testing, he includes no documentation in
his appendix demonstrating that such a motion was filed with the trial court, let
alone brought to the trial court’s attention. See In re State ex rel. Weeks, 391
S.W.3d at 121—22; see also In re Garrett, 2014 WL 4207148, at *1; In re Chavez,
62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding) (district clerk’s
knowledge of relator’s motion filed with clerk is not imputed to the trial court).
Thus, there is no basis for this Court to conclude on the limited information filed
by Mendoza that the trial court has failed or refused to perform a ministerial duty.
See In re State ex rel. Weeks, 391 S.W.3d at 121—22; see also In re Garrett, 2014
WL 4207148, at *1. We conclude that Mendoza has failed to demonstrate his
entitlement to mandamus relief because “[i]n this case, relator has not provided this
Court with a record that shows that he made any request of respondent to perform a
nondiscretionary act that respondent refused.” In re McKelvey, Jr., 2009 WL
1563000, at *1.
6
CONCLUSION
Accordingly, we deny Mendoza’s mandamus petition. We dismiss
Mendoza’s motion for en banc reconsideration as moot.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
7