in Re: Erik Bowen ( 2015 )


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  • DENIED and Opinion Filed February 10, 2015.
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-15-00137-CV
    No. 05-15-00139-CV
    No. 05-15-00140-CV
    IN RE ERIK BOWEN, Relator
    Original Proceeding from the 401st Judicial District Court
    Collin County, Texas
    Trial Court Cause No. 401-80668-09, 401-80666-09, 401-80667-09
    MEMORANDUM OPINION
    Before Justices Lang-Miers, Evans, and Whitehill
    Opinion by Justice Evans
    Relator filed this petition for writ of mandamus complaining the trial court has failed to
    rule on his motion for forensic DNA testing. Relator’s petition for writ of mandamus in this case
    fails to comply with rule 52 in a number of respects. “Those seeking the extraordinary remedy
    of mandamus must follow the applicable procedural rules. Chief among these is the critical
    obligation to provide the reviewing court with a complete and adequate record.” In re Le, 
    335 S.W.3d 808
    , 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding). Because the record
    in a mandamus proceeding is assembled by the parties, see TEX. R. APP. P. 52.3(j), 52.3(k), 52.7,
    this Court strictly enforces the authentication requirements of rule 52 of the rules of appellate
    procedure to ensure the integrity of the mandamus record. See, e.g., In re Butler, 
    270 S.W.3d 757
    , 759 (Tex. App.—Dallas 2008, orig. proceeding) (finding affidavit insufficient to
    authenticate record because it did not state affiant had “personal knowledge the copy of the order
    in the appendix is a correct copy of the original.”).
    Relator’s petition for writ of mandamus does not include a certification that the person
    filing the petition “has reviewed the petition and concluded that every factual statement in the
    petition is supported by competent evidence included in the appendix or record.” TEX. R. APP.
    P. 52.3(j). It does not include an appendix or record in support of the petition. TEX. R. APP. P.
    52.3(k)(1)(A); 52.7(a).
    Further, the relator’s petition does not demonstrate that the relator has taken any
    measures to obtain a ruling on his motion. A court is not required to consider a motion that has
    not been properly called to its attention.    In re Davidson, 
    153 S.W.3d 490
    , 491 (Tex. App.—
    Amarillo 2004, orig. proceeding); Metzger v. Sebek, 
    892 S.W.2d 20
    , 49 (Tex. App.—Houston
    [1st Dist.] 1994, writ denied). The duty to procure a hearing rests on the moving party, not upon
    the trial judge. Bolton's Estate v. Coats, 
    608 S.W.2d 722
    , 729 (Tex. Civ. App.—Tyler 1980, writ
    ref'd n.r.e.).
    Relator’s petition fails to establish a right to mandamus relief. We DENY the petition.
    TEX. R. APP. P. 52.8.
    /David Evans/
    DAVID EVANS
    JUSTICE
    150137F.P05
    –2–