in Re Sylvester Majors

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-06-00701-CV In re Sylvester Majors ORIGINAL PROCEEDING FROM TRAVIS COUNTY M E M O R A N D U M O P I N I O N Sylvester Majors is serving the prison sentence imposed following his conviction for aggravated robbery. In September 2005, he filed his pro se "Defendant Motion Requesting Forensic DNA Testing" in the 299th Judicial District Court. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2006). On October 18, 2006, after the State filed its response in opposition to the motion, the district court signed and filed a written order purporting to overrule "Applicant's Motion for Appointment of Counsel to file motion for DNA testing." Majors perfected an appeal to this Court urging that his motion for DNA testing was erroneously denied. We dismissed the appeal with a memorandum opinion explaining that "[t]he record before us does not reflect any ruling by the district court on [Majors's] motion requesting forensic DNA testing. Without a ruling in the record, there is nothing before us for review with respect to appellant's motion requesting forensic DNA testing." In re Majors, No. 03-06-00091-CR (Tex. App.--Austin Aug. 9, 2006, no pet.) (not designated for publication). In November 2006, Majors filed this petition for a writ of mandamus. In his petition, he complains that the district court has not ruled on his motion for DNA testing and asks the Court to order the district court to act on the motion. Consideration of a motion properly filed and before the court is ministerial. State ex rel Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). On January 30, 2007, the district court acted on Major's motion for DNA testing. On that date, the court signed a nunc pro tunc order purporting to correct the clerical error in the court's October 18, 2006, and overruling Majors's motion for DNA testing. Majors may timely appeal from the January 30 order. See Homan v. Hughes, 708 S.W.2d 449, 452 (Tex. Crim. App. 1986); Ex parte Curry, 712 S.W.2d 878, 880 Tex. App.--Austin 1986, no pet.). Because the relief sought has been otherwise granted, the petition for writ of mandamus is dismissed. ___________________________________________ Bob Pemberton, Justice Before Chief Justice Law, Justices Pemberton and Waldrop Filed: March 14, 2007