in Re: Michael Leron Dowden

In The Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00048-CR IN RE: MICHAEL LERON DOWDEN

Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION Relator, Michael Leron Dowden, proceeding pro se, has filed a petition for writ of mandamus asking this Court to compel the trial court to (1) enter a written ruling 1 on his request for motion for post-conviction 2 DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure, and (2) grant his request for DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01, 64.03 (West. Supp. 2013). We deny Dowden’s petition for writ of mandamus because (1) Dowden failed to provide us with a record to support his entitlement to mandamus relief and (2) we lack the authority to compel the trial court to grant Dowden’s motion for DNA testing, assuming that one was filed.

Dowden’s entitlement to mandamus relief requires proof that he has no adequate remedy at law to redress his alleged harm and that the act he seeks to compel is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). Failure to meet both of these requirements is fatal to his petition for writ of mandamus. See id. 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); see In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig. proceeding).

It is Dowden’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.”). To properly request mandamus relief, Dowden was required to include a statement of facts supported by citations to “competent evidence included in the appendix or record” and provide “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record.” See TEX. R. APP. P. 52.3. Dowden could not meet these requirements unless he furnished an appendix or record sufficient to support his claim for mandamus relief. See TEX. R. APP. P. 52.3(k), 52.7(a).

Without citation to the appendix or record, Dowden’s petition suggests that the motion for DNA testing was orally denied. 3 However, the papers attached to Dowden’s petition do not include a motion for DNA testing, much less any proof that such a motion was filed with, presented to, or ruled on by the trial court. The only thing Dowden’s petition and supporting documentation actually show is that, on February 5, 2014, the Texas Court of Criminal Appeals denied a writ of habeas corpus filed by Dowden. We conclude that Dowden has not provided this Court with a sufficient record to support his claim.

Next, Dowden’s petition for writ of mandamus also asks this Court to order the trial court to grant his motion for DNA testing. In general, we have mandamus jurisdiction to direct a trial court to make a decision, but we may not tell the trial court what that decision should be. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); cf. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n.3 (Tex. Crim. App. 2003) (orig. proceeding) (mandamus may lie to compel trial court to rule certain way when nothing is left to its discretion). We decline Dowden’s invitation to have us compel the trial court to grant his motion. 4

We deny Dowden’s petition for writ of mandamus.

Josh R. Morriss, III Chief Justice

Date Submitted: April 8, 2014 Date Decided: April 9, 2014 Do Not Publish