in Re: James Cornelious Kirk

• Court: Court of Appeals of Texas
• Decided: May 13, 2022
• Docket: 05-22-00363-CV
• Status: Published

Opinion

DENIED and Opinion Filed May 13, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00363-CV No. 05-22-00364-CV No. 05-22-00365-CV

IN RE JAMES CORNELIOUS KIRK, Relator

Original Proceeding from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F16-59404-M, F16-59405-M, & F16-59406-M

MEMORANDUM OPINION Before Justices Myers, Nowell, and Goldstein Opinion by Justice Goldstein James Cornelious Kirk has filed a petition seeking a writ of mandamus to

compel the trial court to rule on his pending motion for post-conviction DNA testing.

We deny the petition.

Relator’s petition is not properly certified. See TEX. R. APP. P. 52.3(j); In re

Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding).

Furthermore, although appellant has filed some unauthenticated documents, the

petition is not supported by an appendix with certified or sworn copies of documents

showing relator is entitled to relief. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1);

Butler, 270 S.W.3d at 759. Relator bears the burden of providing the Court with a sufficient record to show he is entitled to relief. Walker v. Packer, 827 S.W.2d 833,

837 (Tex. 1992) (orig. proceeding). Without a certified petition and authenticated

record, relator has not carried that burden. See Butler, 270 S.W.3d at 758–59.

Additionally, relator has not shown that he brought the motion to the trial

court’s attention or reminded the trial court by letter that the motion is still pending.

See In re Rangel, 570 S.W.3d 968, 969 (Tex. App.—Waco 2019, orig. proceeding);

In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding);

see also In re Read, No. 05-21-01014-CV, 2021 WL 6194726, at *1 (Tex. App.—

Dallas Dec. 31, 2021, orig. proceeding) (mem. op.). Without such a showing, relator

cannot show he is entitled to mandamus relief on his motion. See In re Prado, 522

S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.).

Accordingly, we deny the petition.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE 220363F.P05

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