in Re: Cedric Millage

• Court: Court of Appeals of Texas
• Decided: January 9, 2023
• Docket: 05-22-01372-CV
• Status: Published

Opinion

DENY and Opinion Filed January 9, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01372-CV

IN RE CEDRIC MILLAGE, Relator

Original Proceeding from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 366-80247-07

MEMORANDUM OPINION Before Justices Reichek, Carlyle, and Kennedy Opinion by Justice Kennedy In this original proceeding, relator seeks a writ of mandamus compelling the

trial court to conduct a hearing and make a finding regarding the results of post-

conviction DNA testing pursuant to Article 64 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 64.04. We deny the petition.

To establish a right to mandamus relief in a criminal case, the relator must

show that the trial court violated a ministerial duty and there is no adequate remedy

at law. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.

proceeding). As the party seeking relief, the relator has the burden of providing the

Court with a sufficient mandamus record to establish his right to mandamus relief.

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); TEX. R. APP. P. 52.3, 52.7. Here, relator has filed with the petition only unauthenticated

documents, rather than certified or sworn copies of the motions and other relevant

documents as the rules require. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1); In re

Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding). Without

a properly authenticated record, relator has not carried his burden. See Butler, 270

S.W.3d at 758–59.

Additionally, relator has not included with his petition any documentation

showing that he has requested the trial court to conduct a hearing and issue a finding

pursuant to Article 64.04. Without such a showing, relator cannot demonstrate he is

entitled to mandamus relief for the trial court’s failure to act. See In re Perkins, 512

S.W.3d 424, 432 (Tex. App.—Corpus Christi 2016, orig. proceeding) (basic tenet of

mandamus practice requires relator to show demand for performance and refusal to

act).

Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

/Nancy Kennedy/ NANCY KENNEDY JUSTICE

221372F.P05

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