Opinion
No. 04-16-00150-CR
04-06-2016
IN RE Timothy GAFFNEY
MEMORANDUM OPINION
Original Mandamus Proceeding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice PETITION FOR WRIT OF MANDAMUS DENIED
This proceeding arises out of Cause No. 2010CR1998, styled The State of Texas v. Timothy Gaffney, pending in the 144th Judicial District Court, Bexar County, Texas, the Honorable Lorina I. Rummel presiding. --------
On March 24, 2016, relator filed a pro se petition for writ of mandamus complaining of the trial court's failure to rule on relator's motion for post-conviction DNA testing.
When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act and mandamus may issue to compel the trial judge to act. See Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004); see also Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding) (holding a trial court is required to consider and rule upon a motion within a reasonable time). However, the relator has the burden of providing this court with a record sufficient to establish a right to mandamus relief. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a) ("Relator must file with the petition [ ] a 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"); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Mendoza, 131 S.W.3d 167, 167-68 (Tex. App.—San Antonio 2004, orig. proceeding).
Relator has not provided this court with a record sufficient to establish his claim for relief. Relator has provided no record establishing that a motion for post-conviction DNA testing has been properly filed with the district clerk, the trial court has been made aware of the motion or has expressly refused to rule on it, and the motion has been pending for an unreasonable period of time. In re Gallardo, 269 S.W.3d 643, 645 (Tex. App.—San Antonio 2008, orig. proceeding). Gaffney has not shown himself entitled to mandamus relief. Accordingly, the petition for writ of mandamus is denied.
PER CURIAM DO NOT PUBLISH