Case Information

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The re O. D. VanDuven, Relator Pro Se V.

Harris County District Clerk: Chris Daniel, and 174 th District Court; In Their Official Cpreity, Respondents Phintiff's Original Application for Writ of Mandamus To The Honorable Judge of Said Court:

Cones wom, O. O. VanDuven, Relator, pra se in the above styled and numbered cause of action and files this Original Application for Writ of Mandamus, pursuant to Tens Rules of Appellate Pacedure 10.1 and 52.1, and wouldabow the Court the following:

I.

The Relator has exhausted his remedies and has no other adequate remedy at law. The acts sought to be compelled are ministerial, not discretionary in nature.

II.

Respondent, Chris Daniel, not personally and individually, but in his capacity as District Clerk of Hartis County, Tens his office and deputy clerks have a ministerial duty to reciere and file all papers in a criminal proceeding, as well as an appeal, and perform all other duties imposed on the clerk by law pursuant to Tens Code of Criminal Procedure Art. 2.21 and is responsible under Tens Rules of Appellate Procedure, as well as any orders issued by a Court of Appeal, Court of Criminal Appeals and the

*2 Supreme Court of Texas, and Any Court of competent jurisdictions.

The violations of these rules and orders the Relator will show a history of violations in his statement of facts in this Applications For Writ Of Handwuns,

1. On March 7, 2013, Relator sent cover letter and Waver Of Counsel to Edge of 174th District Court, which was not included in the record until after the order of this Court of abatement until a hearing was had on Waver of Counsel.

2. On April 7, 2013 a copy of request for records was sent to Clerk of the First Court of Appeals and Clerk of the 174th District Court, 4 and 5 pages, not part of record.

3. On June 12, 2013 a copy of cover letter, motion for bench warrant, declaration of inability to pay cost and second supplemental request for clerk's record was mailed to Clerk of First Court of Appeals and Clerk of 174th District Court, not included in record.

4. On July 1, 2013 a copy of cover letter and request for court reporter's records was mailed to the Judge of 174th District Court, 5 pages, not included in the records, see letter to Clerk of First Court of Appeals.

5. On July 8, 2013 a copy of cover letter to Clerk, 174th District Court and motion for new trial in arrest of judgment to request a hearing on the record was mailed to Clerk of 174th District Court and Clerk of First Court of Appeals, 5 pages, not included in the record.

6. On August 12, 2013 a copy of cover letter and request for independent forensic analysis was mailed to clerk of 174th District Court and Clerk of first Court of Appeals, 4 pages not included in record.

7. On August 16, 2013 a copy of cover letter and notice of interest was mailed to clerk of the 174th District Court, along with motion for extension of time to the Clerk of the First Court of Appeals.

8. On August 25, 2013 a copy of cover letter to clerk of 174th District Court, Appellant's Original Applications for Writ Of Handwuns and cover letter was mailed to Clerk of the First Court of Appeals to be filed in the in the District Clerk's Office.

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1. On August 30, 2013 a white card notification was received denying Motion to request independent forensic analysis, said Motion was filed in District Cled's office, no notification of transfer to First Court OfAppeals was received
2. On August 31, 2013 a cover letter, notice of appeal, and copy of cover letter and motion relating to informalities in the record filed in the first Court OfAppeals was mailed to the Clerk of 17thn District Court.
3. On September 20, 2013 a white card notification was received from First Court OfAppeals, copy of opinion on mandamus could be obtained online, Mandamus originally filed with Clerk of the 17th District Court, transferred to First Court Of Appeals.
4. On October 25, 2013 letter mailed to Clerk of the First Court of Appeals to be placed in the record of this appeal.
5. On December 17, 2013 phase appellate brief mailed to family member to be sent to Clerk of the First Court of Appeals, brief 122 pages; exhibits Ithough 510, 298 pages a total of 420 pages.
6. On January 22, 2014 received green card signed by K. Henderson, 1-10-14.
7. On January 26, 2014 sent cover letter and Motion relating to appellants Brief to Clerk of First Court of Appeals.
8. On January 26, 2014 a letter was sent to Harris County District Clerk to request information, no reply received.
9. On January 31, 2014 received white card notification of filing of Appellants Brief, appellee brief due 2-18-2014.
10. On January 31, 2014 relation requested a copy of appellee's brief for reasons stated in the letter.
11. On February 21, 2014 relation received order of First Court of Appeals granting his motion relating to appellants brief, Motion relating to informalities in the record, granted in part and denied in part, to wit ithe Court orders the court reporter to file, within 21 days of this order, either (1) a supplemental reporters record containing 49 Irawscripts of hearings on motions to withdraw filed by Attorneys Birth Buctou and Mark Lipkine" or (2) an information sheet

*4 centifying that no such records exist. All other requests by appellant to supplement the record are denied. 20. On March 18, 2014 relator recieved white card notifications, time for state's brief had expired, no brief nor motion for extension of time had been filed. 21. On March 23, 2014 a cover letter and motion relating to presentation of Appeal was mailed to clerk of First Court of Appeals, 5pMies. 22. On April 23, 2014 relator sent to Clerk of First Court of Appeals to request that his motion be presented to Court and change of address. 23. On May 7, 2014 relator sent letter to Clerk of first Court of Appeals to request status of hearing date of Appeal and motion relating to presentation of Appeal. 24. On May 16, 2014 relator received 2 white card notifications, which are the same as explained here in #20. 26. On May 19, 2014 relator recieved letter from office of the Clerk of First Court of Appeals, ask nonledge of communication of April 28, 2014. 24. On May 28, 2014 relator recieved letter from office of the Clerk of first Court of Appeals, ask nonlege of communication of May 12, 2014. 27. On June 1, 2014 relator sent letter to Clerk of First Court of Appeals, along with copies of cover letter and letter to 174th District Court. 28. On June 18, 2014 relator received 2 letters from Jessie Rodriguez, Deputy Clerk IV to inform of costs of records of the District Clerk. 29. On June 21, 2014 relator sent letters to office of Clerk of First Court of Appeals to clarify request, and letters to Chris Daniel, Alan Curry and Daniel McCrory. 30. On June 30, 2014 a letter from D. J. Orsack court reporter was received stating my letter was forwarded to Patricia Palmer who was reporter at time of trial. 31. On June 30, 2014 a letter from Patricia Palmer was received stating to contact Deputy District Clerk and First Court of Appeals for trial transcripts, did not address order of the First Court of Appeals.

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1. On July 9, 2014 relator mailed cover letter and notice of interest to the Clerk of First Court of Appeals.
2. On July 23, 2014 relator revised white card notification, State's brief was filed July 21,2014.
3. On July 28, 2014 relator mailed letter to Clerk of First Court of Appeals to request date set for hearing, request copy of Apples brief, and copy of supplemental records, if the order was complied.
4. On August 14, 2014 relator received a copy of Apples's brief from the Clerk of First Court of Appeals.
5. On August 16, 2014 relator received letter from Clerk of First Court of Appeals, cause set for submission on September 3, 2014.
6. On August 25, 2014 relator sent cover letter and motion to compel, apages to Clerk of First Court of Appeals.
7. On September 23, 2014 relator sent a letter to Clerk of First Court of Appeals to notify the Court of change in address and to request status of motion to compel and submission of appeal.
8. On October 2, 2014 relator received a letter from Clerk of First Court of Appeals to acknowledge communication received September 28, 2014.
9. On November 3, 2014 relator received judgment, 8 I pages by Justice Stand affirming trial court judgment and denying all pending notions.
10. November 19, 2014 Notion to reconsider was united to Clerk of First Court of Appeal and has not been ruled out, as of this date.

The Respondent, Harris County District Clerk Chris Daniel violated the order of this Court, to wit, if 13 an order to supplement the record as well as perform ministerial duties of the clerk. Resurt to Rules 13.1 and 13.3 of Rules of Appellate Procedure, there is a disobedience of the Court's order by notions in opposition of these rules and the Court's Authority. The clerk has failed to accomplish what is ordered, as official

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Act, conclusive upon the person it is directed to and entitled to the same report and due diligence as a judgement of the court, entered in writing to perform ministerial functions of that office. Pursuant to Rule 34.9(A)(2) (C) of Texas Rules of Appellate Procedure, Art 2, 22 and Art. 4, 23 of Cote of Criminal Procedure there exists violations of the court's order. Even further, violations exists Pursuant to Rule 34.6(b), (c)(2), (d), (f) and (h) in the continued refusals. Rule 36.3 (a) and (b) are also violated, a complete record has not been filed in the Appellate Court. All requests and notions are part of the record sent to the clerk of this Court in the appeal. Such records are required, and relator has not received a response. Relator has gone well beyond may requirement or obligation imposed on him by the rules. In contrast to Relator's efforts, Respondent office has wholly failed to comply with the rules, order of the Court and is acting in bad faith. In the Order of The Court of Criminal Appeals of Texas, Order Directing The Form of The Appellate Record In Criminal Cases of the Clerk's Record and Reporter's Record, see order reported in Texas Criminal Procedure Code and Rules, 2014 Edition, West's Texas Statutes and Codes, Appendix E, and Rule 34.4, Rules of Appellate Procedure states, "The Supreme Court and Court of Criminal Appeals will prescribe the form of the appellate record." The Appellate Court may enter any order necessary to ensure the timely filling of the appellate record, Rule 36.3 (c) Texas Rules of Appellate Procedure. Pursuant to Rule 37.3 (a)(2) of Appellate Procedure "The court must make whatever order is appropriate to avoid further delay and to preserve the parties' rights." Pursuant to Rule 43.6 of Appellate Procedure the court of appeals may make any other appropriate order that the law and nature of the case require. Relator seeks to correct the abuses of respondent. There are violations of duties imposed by law and orders of the Court of Criminal Appeals, Supreme Court and First Court of Appeals, Failure to act within the order, failure to answer has been indefinace of the order and will disobedience and violation of the duty of

*7 office of district court. Citing the following: Maudmus Key 4 (i) - Mandamus will issue only by correct a clear abuse of discretion when there is no adequate remedy by appeal. Maudmus Key 1 - Whit of Mandamus is an extraordinary remedy that will issue only to correct clear abuse of discretion or the violation of a duty imposed by law, when there is no other adequate remedy by law. - Id. Tw re Chistensou, 39 3 hi, 3d 280 Tez. App. - Who 2801 - To obtain mandamus relief, a relator must first show that the respondent either violated his duty or abused his discretion. Tw re Taylor, 39.3.14.3d 4010 . When an official fails to perform a ministerial act, that is a violation of a duty imposed by law, for which mandamus relief is available. - Id. Tez. App. - Corpus Christi 2000. - Traditionally, the writ of mandamus issues to compel the performance of a ministerial act or duty. - Christus Spohn Health System Corp. v. Nueces County Hosp. Dist., 39.3.W. 3d 6210, rehearing dismissed. Ministerial Acts, for purposes of mandamus, are those where the law prescribes and defines the duties to be performed with such precision and certainty as to leaving nothing to the exercise of discretion or judgment. - Id. Appelland Error Key 497 (i) - Dividere is an appellant to ensure that sufficient record is presented on appeal to show reversible error. State ex rel. Youn v. Sixth Judicial Dist. Court of Appeals, 236.3.W. 3d 207, 210 (Tex. Crim. App. 2007) - To be entitled to mandamus relief, relator must show that he has no adequate remedy at law to redress his allerged harm, and that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. Craner v. State, 300.3.14.3d 762,787 (Tex. Crim.App. 2007) (reviewing court must determine whether arguable grounds for review exists; Bledsoev. State, 178.3.W. 3d 824,8210 - 27 (Tex. Crim. App. 2005)(same);

*8 Mitchell, 193 S.W. 34 at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record. In re Reed, 137 S.W. 3d 476, 478 (Tes. App. San Antonio 2004, orig. proceeding) (citing State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W. 34 924, 927 (Tes. Crim. App. 2001)-In order to be entitled to mindrams relief relator must establish: (1) he has no other legal reaedy, and (2) under the relevant facts and law, the act sought to be cupelled is purely ministerial. State ex rel. Young v. Sixth Judicial Appeals at Temarkum, 236 S.W. 3d 267, 210 (Tes. Crim. App. 2007) (orig. proceeding) To be entitled to mindrams relief in a criminal case, a relator must show that he has no adequate reaedy at law to redress his alleged harm, and that what he seeks to compel is a Ministerial Act, Not involving a discretionary or daticid decision. Barnes v. State, 832 S.W. 2d 424, 426 (Tes. App. Hou list Dist. 71992, orig. proceeding. It is relator's burden to properly request and show his entitlement to mandruns relief. In re Srith, 263 S.W. 3d 93, 95 (Tes. App. Hou list Dist.) 2006, orig. proceeding) see Tes. Cravit (ode 322, 221(A), (b) jurisdiction to grant mandruns when writ is necessary to enforce jurisdiction. State ex rel. Cury v. Gray, 726 S.W. 2d 1925, 128 (Tes. Crim. App. 1987 (orig. proceeding) Are act is ministerial if it constitutes a duty clearly fixed and required by law, Griffin v. Illinois, 351 U.S.12, 76 S. Ct. 585 (1950). The court held that the defendant, who was indigent, was denied appellate review when the Court of Criminal Appeals did not have the statement of facts. Ex parte Cauteras, 586 S.W. 2d 550 (Tes. Crim. App. 1979). The indigent appellent was denied an appeal when the record did not include the transcription of the court reporter's notes. Ex parte Mayo, 510 S.W. 2d 1001 (Tes. Crim. App. 1974). The court held that the defendant, an indigent, was entitled to a new trial date

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due to the court reporters' inability to file the statement of facts because it had been lost. Appeal and Error Key 1177 (9)-Generally, when a trial court conducts a be- saving and an appellant exercising due diligence is unable to abtain a proper fe- cord of the evidence introduced through no fault of his own, a new trial is required if the appellant's right to appellate review cannot be preserved any other way. Obstruction of the lawful process of this appeal has occurred from the be- growing as mentioned and documented in this mundaneus and the records of the appellate court. The setious complained of how been worked in vexacious manner to the result of defective trial court records, defective transciipts and withull disobedience of the order of this court, and fails to conform to the requirements of the appellate rules, Jews Court of Criminal Appeals and Suppeace Court of Jews. These denials have denied the appellant his right of a full and fair review by the appellate court, even further a full and fair review has been made now-existent.

IV

The Respondent, Judge of the 174th District Court of Harsis County, Jews has a ministeriability in all criminal proceedings to perform all duties imposed by law pursuant to Chapter 6/4 Texts Code of Criminal Procedure, Jews Laws and Constitution and Law and Constitution of the United States. The Respondent violated the rules and laws complained of in the following manner and the Relator shows that he has exhausted his remedies and has no other adequate remedy at law. The set sought is ministerial, not discretionary. As is clear, Relator has repeatedly requested to test the evidence, that the State has alleged to have in its possecessions in the following manner:

1. The Relator will show from the records of the clerk requests to test the evidence started on date Motion for Independent Forensic Analysis

*10 filed December 10, 2011, pro se Notions. 2. Motion To Inspect, Examine and Test Physical Evidence, filed by Ruth Bucha and granted one December 10, 2011, there appears to be a discrepantiy in the filing date December 9, 2011 see pages 19-21, clerks record. 3. Praise Analysis denied, see page 25 clerks record. 4. Pro Se Notice Of Appear filed January 3, 2012, not ruled an. pgs. 28-30. 5. Defendant's Motion To Hive Written Rulings Make On All Motions Filed By Defendant filed January 3, 2012, denied January 12, 2012 pages 31-34 6. Motion For Discovery and Inspection Of Evidence filed January 19, 2012, denied January 19, 2012 pages 36 - 42. 7. Discovery Order filed and ordered on January 23, 2012 pages 43-45. 8. Motion To Inspect, Examine And Test Physical Evidence filed January 23, 2012, Not ruled an pages 53-56. 9. Motion For Production Of Evidence Favorable To The Accused filed January 23, 2012 pursuant to Paraty v. Maryland, 373 U.S. 83 S.C. 1194, 10 L. 64, 2d 215 (1963), Not ruled an. 10. Motion To Examine The Evidence filed on April 25,2012, pro se, not ordered on pages 112-115, please read. 11. Motion To Preserve The Evidence/Os Not Destroy Order, pro se, filed April 25, 2012, not ruled on pages 116 - 118. 12. Discovery Order, ordered and entered June 28,2012 pages 120-122. 13. Report of Etrusis Laboratory Analysis - Alcohol Analysis, Not certified page 155-156. Chain of Custody not certified shows otherwise unclassified on 5/24/12 and in possession of Laura Parella from 5/22/2012 to 5/24/2012, a violation of the chain of custody. 14. On July 18, 2012 State's Attorney filed Brady v. Maryland Disclosure stating there is none, page 114. 15. On August 29, 2012 a Discovery Order was ordered and entered pages 213 - 215.

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1. See pages 316-317, requests by jury after long period of deliberation page 318; see also trial transcripts for photo's sent tajury, question evidence remaining and available for independent testing. As shown here there has been numerous pre trial requests to test the evidence that the state alleges to have in the possession of Houston Police Department, evidence from the post and the post, There are Discovery Orders signed by the trial judge. There is a statement signed and entered into the record stating there is no Brady Material. The State continued through the use of a toxicology reports alleged to be authored by J. J. Wang, testimony by Laura Barella, as well as a certificate of analysis, not certified and chain of custody, not certified to alleges evidence of toxicology in its possession.

The Relator will show he has exhausted his remedies at the pre trial level, at the appellate level and the District Court has denied him the right to have the evidence alleged by the State to be in their possession to be reviewed by the appellate court. During the trial of this cause the state's attorney made mention of evidence of toxicology in the transcripts of the trial, starting at: 1. Volume I. Voir Dire, page 4; lines 1 through 8 is a request by defense for a motion hearing and the answer of the court, a blunt never to requests of defendant. 2. Voir Dire pages 414-48, States attorney alleges to be able to prove O. B. Blood, Hebal Concentration lines 24-25 and 1-21. 3. Voir Dire pages 77-83, defense counsel discusses blood test and chain of custody. 4. Volume 2, page 8 lines 6 and 7 States attorney states defendant consents to blood sample, to line 25, page 9 lines 1 to 3. 5. Volume 2 pages 68 to 79 discusses evidence, blood straw and

*12 state's exhibits introduced as evidence during the guilt/innocence phase of trial. 10. Volume 2 page 86 to 87 gives testimony on blood vials and storage of evidence in possession of police officers. 7. Volume 2 page 88 +89 testimony on each blood alcohol concentration.

1. Volume 2 page 92 to 103 the nurse testifies about blood draw of defenidant.
2. Volume 2 page 115 state's attorney, alleges document in evidence of blood alcohol test.
3. Volume 2 page 117 alleges to be asked to re-test samples, see chain of custody of custody and Report of Forensic Analysis pages 188 and 156 of clerk's records, DWI - unclassified at time of reports alleged to be completed on 5-24-2012, so records or reports of either the first or second test are part of clerk's record, discovery or trial transcripts, also state's exhibit 17, an unknown document alleges a sample available for independent testing, by the person who alleges to test evidence by not suercing under oath to Authenticity of test or document, please review all exhibits of blood evidence.
4. Volume 2 page 118 testimony on testing of blood, still there are no toxicology reports, authentic certificate of analysis, notes, Brady material or chain of custody authenticated.
5. Volume 2 pages 119 to 123 testimony alleges to test evidence on 5-23-12. A date different from the date alleged on the unsuare certificate of analysis 13. Volume 2 pages 123 to 126 Retrograde extrapolation testimony and alleges a trial for independent tests, defense never requested a test, and to be the second annly at to test this evidence.
6. Volume 2 pages 125 to 126 testimony on allegations of first test and by who, no evidence of test, report, notes, Brady material or certificate of analysis, in fact state's exhibits 3 have be never tested the evidence and it remained unclassified until it was alleged to be tested in 5-2012.

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1. Volume 2 page 127, testimony on date evidence arrived at lab, chaioc of custody and witness admitted defendant's blood wever treated for serology to establish a direct link between defendant and alleged evidence.
2. Volume 2 pages 127 to 135, testimony on serology, who did the first test, testing of equipment, condition of the sample, chaiue of custody, number of vials of evidence and storage.
3. Defendants argument and States argument allege evidence alleged to be tested Volume 2 pages 144 th
4. Please review exhibits $8,9,10,11,12,13,14,15,17$ of trial transcripts 19. Please review page 316 clerks record, after a period of long deliberation without a verdict, at guilt/innocence phase. 20. Please review pages 317 and 318 , also requests by the jury in the clerk's record.

V.

Relator clearly states that he has attempted to exhaust his remedies and has no other remedy at law. The acts sought are ministerial and not discretionary in nature. Please review the following:

1. Motion To Dismiss Court Appointed Counse1 and Appoint NewCounse1 to Act On Behaff of Defendant, mailed to clerk 12-14-2011, missing from regards.
2. Defendant's Amended Motion To Dismiss Court Appointed Counse1 And Appoint NewCounse1 To Act On Behaff of Defendant mailed to clerk of 144 th on 2-22-12.
3. Defendant's Second Amended Motion To Dismiss Court Appointed Counse1 And Appoint New Counse1 To Act On Behaff of Defendant filled on 7-2-12.
4. Defendant's Third Amended Motion To Dismiss Court Appointed Counse1 And Appoint New Counse1 To Act On Behaff of Defendant filed on 7-30-12.

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1. Defendant's Fourth Awarded Motion To Dississ Court Appointed Counse And Appoint New Counse! To Act On Behaff Of Defendant filed on 9-14-12.
2. Defendant's Fifth Motion To Dississ Court Appointed Counse And Appoint New Counse! To Act On Behaff of Defendant filed onl-22-13.
3. Relator filed the above listed Motions to Dississ Court Ap- pointed Bourse I to complain of the chain of custody of the evidence, chain of custody of the alleged toxicology report of Jorge Wang, which is missing from the records.
4. Relator complained in these mations that the evidence alleged to be in custody of police has not been certified by D.P.3. for toxicology or serology.
5. Relator complained that the alleged evidence has not been certified in court and on record to D.A., trial judge and his attorney Mark Lipkiss during a heaning on his request to withdraw.
6. Relator sent letters to Attachays Burton and Lipkin to request testing of alleged evidence.
7. The 17th District Court abused its discretion in themial of defendant's right to test the evidence before trial, the evidence is material, and evculpatory, and denied defendeat the opportunity to present this evidence to a jugg, a violation of due process.
8. The trial court abused its discretion by not ruling on the Appellant's postcomiction motion to test the evidence by presenting this request to test to the Appellate Court for a ruling, see the records of this Appeal.
9. The trial court failed by not ordering the State to produce the evidence to the court for inspection.
10. The trial court failed in a Kelly - Daubert hearing, no such hearing exists as part of Appellate Record, the evidence hever passed the Hhreshold test under Tens Rules of Evidence.

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1. The withheld evidence would show falsity in testimony and in perch, requests where timely in advance of trial, due diligence was exercised and no reasonable factfinder would have found Relator guilty of underlying offense.
2. Relator cites the following:

Tex. App. - Houston [1 Dist.] 2005. Trial court abuses its discretion where the trial court's decision is arbitrary or unreasonable; the question is whether the trial court acted without reference to any guiding rules or principles. State v. Fury, 186.3.W.3d 67, petition for discretionary review refused.

Tex. App. - Houston [14 Dist.] 2006. A trial court abuses its discretion where its decision lies outside of the zone of reasonable disagreement. - Ganther v. State, 187.5.W. 3d 641.

Tex. App. - Mass 2001 - No adequate remedy at law available by direct appeal since there was no record for appellate court to review on those issues, thus entitled to mandamus relief. - Inre Taylor, 375.W.3d 401aj. When an official fails to perform a ministerial act, that is a violation of a duty imposed by law, for which mandamus relief is available. - Id.

Tex. App. - Amurilla 2000. Consideration of a motion properly filed and before a trial court is ministerial, for purpose of evaluating whether a wait of mandamus to compel a hearing on the motion shall issue. - In re Christensen, 375 W. 3d 250, fundamental requirements of due process mandate an opportunity to be heard, and thus a district court may be compelled via mandamus to consider and rule on a pending motion presented to the court. U.S.C.A. Court. Amend, 14. - Id.

Mandamus relief may be granted if the relator shows the following: (1) that the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law, "Winters v. Presiding. Tube of the Criminal District Court No. Three, 118.3.W.3d 773, 775 (Tex. Chim. App. 2003). "Additionally, the relator must have a clear right to the relief sought, meaning that the merits of the relief sought are "beyond dispute." Id. At 775 (citing

*16 In re Rodriguez, 77 3.W. 3d 459,461 (Tex. App.-Corpus Christi 2002) "The requirement of a clear legal right necessitates that the law plainly describes the duty to be performed such that there is no room for the exercise of discretion." 97 Id.

As is our custom, we will withhold issuance of the writ and accord the district clerk we opportunity to conform her actions to this order. See State ex.rel. Hill v. Pirtle, 8873.W. 2d 921,932 (Tex. Crim. App 1994). Citing Debate v. District Clerk, 1873.W. 3d 473 (Tex. Crim. App 2006).

Relator contends through the order issued by the First Court Of Appeals he has a clear right, and the Court has duty to issue any order necessary to review a complete record in this appeal. Even further the Court should be able to view evidence presented in the trial, and submitted again to the jury by request from jury while defendant was excluded from courtroom and not able to ask his attorney to object, because of numerous request to test had gone unanswered.

Courts Key 82, Tex. App.- Houston [14Dist.] 2006. Appellate court may not depend in jurisdiction beyond that conferred by the legislate. - Phillips v. Debate, 1873.W. 3d 699. The notion to test the alleged evidence was filed with District Clerk to be presented to the trial court, and transferred to the First Court of Appeals by officials at trial court level.

Mandamus Key 28, Tex. App. Beaumont 2006. A trial court has no disdiscrétion in determining what the law is or applying the law to the facts, and consequently, the trial courts erroneous legal conclusions, even in an unsettled area of law, constitutes an abuse of discretion, for purposes of mandamus relief. - In re. Dalco, 1863.W. 3d 660, mandamus denied.

Mandamus Key 12, Tex. App.-Tesarkum 2006. Mandamus relief is appropriate only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, which is often described as a "Ministerial" act, and (2) the absence of a clear and adequate remedy at law. - In re. Pippins

*17 Ride Corp., 187 S.W. 3d 197. Mandamue Key 10, Tex. Crim. App. 2006. A relater seeking mandamus relief must have a clear right to the relief sought, meawing that the merits of the relief sought are beyond dispute; the requirement of a clear legal right necessitates that the law plainly decrises the duty to be performed such that there is no room for the exercise of discretion. De leav v. District Clerk, 187 S. W. 3d473.

Mandamus Key 26, C.A.5(Tex.)2008. When the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the could should issue the writ almost as a matter of course. 28 U.S.C.A. 81651 (A). - Tu re Hot-Hed Inc., 477 F. 3d 320, on remand Hot-Hed, Inc. v. Safe House Habitats, L44., 2007 WL 556862.

The trial court erred in transferring the motion filled under the open court to be transferred to the appellate court, there is no record for the higher court to review.

Crim. Lawkey 6275 (1), 1166 (10.10) - Under statute, defendant has a right to have any alleged contraband tested by his own chemist if he makes a timely request for such opportunity; denial of timely request for such opportunity; denial of timely motion to allow such inspection is reversible error. Verhousi Ann. Tex. C.C.P. Art. 524 (Timely request); See Mendoza v. State, 583 S. W. 2d 396, 398 (Tex. Crim. App. 1979), Tercell v. State, 521 S. W. 2 d 618, 619 (Tex. Crim App. 1975), Detweing v. State, 481 S.W. 2 d 863 , 864 (Tex. Crim. App. 1972), Dений of a timely motion to allow such inspection is reversible error. Terrell, 521 S.W. 2 d at 619 ; Detweing, S.W. 2 d at 864 .

Tex. App. Houston (1st Dist.) 2006e, orig. proceeding - To complain about the trial court's action or failure to action post conviction felony proceeding, an appellant may seek mandamus relief from the Court of Criminal Appests. Tuve Briscoe, 230 S.W. 3d 196-97.

Wherefore, premises Considered, Relator, O. D. Van Duven, po 3e, respectfully request a finding that the Respondent did not transmit the

*18 documents as ordered to the First Court of Appeals as ordered within a reasonable time of ther the date they were ordered and that Relator brought this litigation in good faith and has substantially prevailed. Relator prays for an Order directing Respondent to transmit the Ordered documents or comply certifying that said records do not exist, as directed, Even further, Relator, or so respectfully request a finding that Respondent Court recieve and set a date for hearing the request to test the evidence within a reasonable time and transait the findings to the Court of Appeals and that Relator brought this litigation in good faith and has substantially prevailed.

Respectfully submitted, Q. M. Van Duven Q.D. Van Duren

Relator, Fra Se

I declare under penalty of perjury that the foregoing is true and correct. Executed on March 27, 2018. Q. M. Van Duven Q.D. Van Duren

Relator, Fra Se

Certificate of Service I certify that a true and correct copy of the foregoing Original Application for Writ Of Mandamus has been formatted by U.S. Mail, addressed to: Hom Christopher A. mine Clerk of the First Court of Appeals 301 Family St. Hau, JK 77002 - 20bis on the 30th day of March, 2018. Q.M. Van Duven Relator Fra Se

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Order

On this day, came on to be heard the forepoing Relators Applicatiou for Writ of Mawlwius and it appears to the Court same should be: Granted It Is Therefore Ordered that the District Clerk shall imediately transmit the Ordered documents or certify that said records do notevist and a certification reciting the date upon which that transmitta was made. It Is Therefore Ordered that the request to to the evidence be presented to the trial court, a date set for evidewtiary hearing, a finding of fact and conclusions of law filled, any answers filert, and the record be transmitted, and a certification reciting the date upon which that transmitta was made. Signed on this the day of 2015 . 15/ Justice

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OI-15-00311-CR March 27, 2015 How. Christopher A. Pime Clark of the First Court of Appeals 301. Fennine St. Hous, Te. 77002 - 2014.

MArch 27, 2015 PREDIN 187 COURT OF APPERLS HOUSTON TEXAS APR $=7.2015$ cwantipthgth a PRine CLERC

Appeal No. 67-13-00183-CR

Sir: please find enclosed an Original Application for Writ of Mandamus, Nineteen (13) pages along with this cover letter, a total of twenty pages. Please file and present to the Court, Please notify me of receipt and fling. Thank you for your help and consideration.

Respectfully, O.M. VanNieuw

O.D.VanDuren 1834715

RANSEY 1100 F.M. 1055 Rasharom, Te. 77582-7670

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