in Re Jose Manuel Magana Suria

• Court: Court of Appeals of Texas
• Decided: December 16, 2014
• Docket: 13-14-00708-CR
• Status: Published

Opinion

NUMBER 13-14-00708-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JOSE MANUEL MAGANA SURIA

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam1

Relator, Jose Manuel Magana Suria, proceeding pro se, filed a petition for writ of

mandamus on December 12, 2014, through which he seeks to compel the trial court to:

(1) serve a copy of relator’s motion for post-conviction DNA testing on the State of Texas;

(2) hold a hearing as required by Chapter 64 of the Texas Code of Criminal Procedure;

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). and (3) either grant or deny relator’s motion for DNA testing. See TEX. CODE CRIM. PROC.

ANN. arts. 64.01, 64.03 (West, Westlaw through 2013 3d C.S.). See generally Ex Parte

Suria, No. 13-11-00781-CR, 2012 WL 761734, at *1 (Tex. App.—Corpus Christi Mar. 8,

2012, no pet.) (mem. op. per curiam, not designated for publication) (dismissing appeal

of order denying appellant’s request for the appointment of counsel to file a motion for

DNA testing for lack of jurisdiction); Suria v. State, No. 13-06-00453-CR, 2006 WL

2788510, at *1 (Tex. App.—Corpus Christi Sept. 28, 2006, no pet.) (mem. op. per curiam,

not designated for publication) (dismissing appeal of conviction as untimely).

To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)

(orig. proceeding). If relator fails to meet both of these requirements, then the petition for

writ of mandamus should be denied. See id. It is relator’s burden to properly request and

show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—

Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of

mandamus must show himself entitled to the extraordinary relief he seeks.”). In addition

to other requirements, relator must include a statement of facts supported by citations to

“competent evidence included in the appendix or record,” and must also provide “a clear

and concise argument for the contentions made, with appropriate citations to authorities

and to the appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is

clear that relator must furnish an appendix or record sufficient to support the claim for

2 mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix);

R. 52.7(a) (specifying the required contents for the record).

Consideration of a motion that is properly filed and before the court is a ministerial

act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig.

proceeding). A relator must establish the trial court had a legal duty to rule on the motion,

was asked to rule on the motion, and failed to do so. In re Keeter, 134 S.W.3d 250, 252

(Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex.

App.—Amarillo 2003, orig. proceeding). Although a trial judge has a reasonable time to

perform the ministerial duty, that duty generally does not arise until the movant has

brought the motion to the trial judge's attention. In re Chavez, 62 S.W.3d 225, 228 (Tex.

App.—Amarillo 2001, orig. proceeding).

In this case, relator contends that he filed a motion for post-conviction DNA testing

on April 16, 2012; however, the trial court has not taken any action to either grant or deny

his motion. Relator has neither included an appendix nor a record with his petition for writ

of mandamus. Thus, the Court, having examined and fully considered the petition for writ

of mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Relator’s petition

for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th day of December, 2014.