Opinion
No. 05-16-00154-CV
02-29-2016
IN RE VICTOR JEWELL BLACK, Relator
Original Proceeding from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F-0962734-Y
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Whitehill
Opinion by Justice Myers
In this petition for writ of mandamus relator requests that the Court order the trial court to hear and rule on his notice of appeal from the trial court's order denying forensic DNA testing. Relator's petition for writ of mandamus is not certified as required by the rules of appellate procedure and is supported by only a minimal record, which consists only of an unauthenticated copy of a cover letter dated July 23, 2013 addressed to the district clerk and a document entitled "Written Appeal to Order Denying Movant's Motion for Post-Conviction DNA Testing of Evidence." The deficiencies in the mandamus petition and authentication of the record alone are sufficient to warrant the denial of mandamus relief. See In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, no pet.). However, in the interest of judicial economy, we consider the petition.
Neither the Texas Code of Criminal Procedure nor the Texas Rules of Appellate Procedure impose a duty on a trial judge to rule on a notice of appeal. Appeal of an order denying forensic DNA testing is perfected in the same manner as an appeal of any other criminal matter, except that if the convicted person was sentenced to death, the appeal is a direct appeal to the court of criminal appeals. See TEX. CODE CRIM. PROC. ANN. art. 64.05 (West 2006). An appellant in a criminal case must perfect his appeal by "timely filing a sufficient notice of appeal" for each trial-court cause with the trial court. TEX. R. APP. P. 25.2(b); Strange v. State, 258 S.W.3d 184, 186 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). A notice of appeal from an order disposing of a motion for forensic DNA testing is due within thirty days of the date of the order. Welsh v. State, 108 S.W.3d 921, 923 (Tex. App.—Dallas 2003, no pet.). Once a notice of appeal is filed, the clerk of the trial court must immediately send a copy of the notice of appeal to the clerk of the court of appeals. TEX. R. APP. P. 25.2(e).
The rules of appellate procedure do require a trial court to certify relator's right to appeal. See TEX. R. APP. P. 25.2(a)(2), (d), 34.5(c)(2). This certification requirement applies to orders under article 64 of the code of criminal procedure denying forensic DNA testing. See Rodriguez v. State, 153 S.W.3d 245, 248 (Tex. App.—El Paso 2004, no pet.) (certification required in appeal of order denying forensic DNA testing); Lopez v. State, 114 S.W.3d 711, 714 (Tex. App.—Corpus Christi 2003, no pet.) (same). But a trial court's failure to comply with the certification requirement does not prevent an appellant from perfecting an appeal from an order denying forensic DNA testing and has no effect on the timetable for perfecting appeal. Rather, if an appeal is filed in a case lacking such a certification, we must direct the trial court to prepare such a certification. See TEX. R. APP. P. 25.2(a), (d); Cortez v. State, 420 S.W.3d 803, 807 (Tex. Crim. App. 2013); see also Rodriguez v. State, 153 S.W.3d at 248 (trial court ordered to prepare certification of right of appeal); Medearis v. State, No. 03-12-00698-CR, 2013 WL 3929097, at *1 (Tex. App.—Austin July 26, 2013, order) (per curiam) (mem. op., not designated for publication) (abating appeal to obtain certification of right of appeal); Broussard v. State, No. 07-07-0405-CR, 2008 WL 2467699, at *1 (Tex. App.—Amarillo June 17, 2008, order) (per curiam) (not designated for publication) (same).
Mandamus relief is appropriate in a criminal case only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision. In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (orig. proceeding). Relator has not met these requirements. For that reason, we DENY the petition.
/Lana Myers/
LANA MYERS
JUSTICE 160154F.P05