in Re Eustorgio Guzman Resendez

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-18-00490-CR

IN RE Eustorgio Guzman RESENDEZ

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

Delivered and Filed: August 15, 2018

PETITION FOR WRIT OF MANDAMUS DENIED

Relator filed a petition for writ of mandamus complaining the trial court denied his request

for assistance of counsel in relation to his motion for forensic DNA testing.

To establish a right to mandamus relief in a criminal case, the relator must show 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). A trial court has a ministerial

duty to rule on a properly-filed and timely-presented motion. See In re State ex rel. Young v. Sixth

Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

However, a relator has the burden of providing this court with a record sufficient to

establish his right to mandamus relief. See TEX. R. APP. P. 52.7(a)(1) (requiring relator to file “a

1 This proceeding arises out of Cause No. 91CR43, styled The State of Texas v. Eustorgio Guzman Resendez, pending in the 229th Judicial District Court, Starr County, Texas, the Honorable Ana Lisa Garza presiding. 04-18-00490-CR

certified or sworn copy of every document that is material to the relator’s claim for relief and that

was filed in any underlying proceeding”). Here, relator contends his motion “was heard and

denied” on August 18, 2016. However, relator did not provide this court with a copy of an order

or any document showing the trial court’s ruling. See TEX. R. APP. P. 52.3(k)(1)(A) (“The

appendix must contain: (A) a certified or sworn copy of any order complained of, or any other

document showing the matter complained of . . .”). 2

Because relator did not provide this court with a record sufficient to establish his right to

mandamus relief, the petition for writ of mandamus is denied.

Do not publish

2 We also note relator filed an appeal with this court raising the same complaint. See appellate cause number 04-18- 00316-CR. The clerk’s record in that appeal also does not contain any order from the trial court. The trial court docket sheet filed in that appeal indicates a telephonic hearing was conducted on August 8, 2016, and the “court gave [defendants] 7 days to file briefs/caselaw. Court to review case.”

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