In Re: Josiah Andrew Salinas v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 7, 2024
• Docket: 05-24-00206-CV
• Status: Published

Opinion

DENIED and Opinion Filed March 7, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00206-CV No. 05-24-00207-CV

IN RE JOSIAH ANDREW SALINAS, Relator

Original Proceedings from the 265th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-2071443, F-2075253

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Breedlove Opinion by Chief Justice Burns Before the Court is relator’s February 26, 2024 petition for writ of mandamus

wherein relator asks this Court to compel the trial court to rule on a Pro Se Motion

for Post-Conviction DNA Testing.

To obtain mandamus relief compelling the trial court to rule on a motion, a

relator must show (1) the trial court had a legal duty to rule on the motion, (2) the

relator requested a ruling, and (3) the trial court failed or refused to do so within a

reasonable time. In re Salinas, Nos. 05-23-00544-CV, 05-23-00545-CV, 2023 WL

4101439, at *1 (Tex. App.—Dallas June 21, 2023, orig. proceeding) (mem. op.). It

is relator’s burden to provide a sufficient record to establish his right to mandamus relief. Id. A relator’s status as an incarcerated person does not relieve him of the

obligation to file a sufficient record. Id.

Relator’s petition does not meet the requirements of the Texas Rules of

Appellate Procedure for consideration of mandamus relief. See id.; see also In re

Cantu, No. 05-23-01131-CV, 2023 WL 7871643, at *1 (Tex. App.—Dallas Nov.

16, 2023, orig. proceeding) (mem. op.). For example, relator failed to certify that he

has reviewed the petition and concluded that every factual statement is supported by

competent evidence included in the appendix or record. See TEX. R. APP. P. 52.3(j).

Relator also failed to support his petition with a sufficient record or appendix. See

TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a). Although relator filed some documents with

his petition, none are sworn or certified copies, as required by the rules.

Further, relator failed to sufficiently brief his request that we compel a trial

court to rule on a pending motion with appropriate citations to the appendix or

record. See TEX. R. APP. P. 52.3(h). Relator’s petition also does not contain a list

identifying the parties and counsel, a statement of the case, a statement of the issues

presented, or a statement of facts supported by citations to competent evidence

included in an appendix or record. See TEX. R. APP. P. 52.1, 52.3(a)–(c), (d)(1)–(3),

(f)–(g).

Accordingly, we deny relator’s petition for writ of mandamus.

–2– Also before the Court is relator’s February 26, 2024 motion requesting leave

to file his petition for writ of mandamus. This motion is not necessary to commence

an original proceeding. See TEX. R. APP. P. 52.1. Thus, we deny the motion as moot.

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE 240206F.P05

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