in Re: Eugenio L. Rodriguez

Criminal Case Template COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS IN RE: EUGENIO L. RODRIGUEZ, Relator. § § § § § § No. 08-06-00334-CR AN ORIGINAL PROCEEDING IN MANDAMUS MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS Relator Eugenio L. Rodriguez seeks a writ of mandamus ordering the 109th Judicial District Court of Andrews County to appoint an attorney to represent him in his motion for forensic DNA testing pursuant to Tex.Code Crim.Proc.Ann. art. 64.01 and to conduct a hearing on his request for forensic DNA testing and a hypnosis test. Rodriguez also requests this Court compel the District Clerk of Andrews County to file and present his motion to the 109th Judicial District Court, order the District Clerk and the 109th Judicial District Court to stop harassing him with malicious delays and denial of his requests, and order the District Attorney’s Office to disclose witness statements. We first note that Relator has previously filed a motion for forensic DNA testing and was appointed counsel to represent him in that proceeding. See Rodriguez v. State, 153 S.W.3d 245, 246 (Tex.App.--El Paso 2004, no pet.)(recounting the lengthy procedural history of Relator’s first motion). Ultimately, this Court affirmed the trial court’s denial of Relator’s first motion for DNA testing. See Rodriguez v. State, No. 08-04-00178-CR, 2005 WL 2313637 (Tex.App.--El Paso Sept. 22, 2005)(not designated for publication). Apparently, Relator has filed a second motion for forensic DNA testing and request for counsel. The Texas Court of Criminal Appeals recently held in dicta that “Chapter 64 does not prohibit a second, or successive, motion for forensic DNA testing, and that a convicting court may order testing of material that was not previously tested ‘through no fault of the convicted person, for reasons that are of a nature that the interests of justice require DNA testing.’” Ex parte Baker, 185 S.W.3d 894, 897-98 (Tex.Crim.App. 2006). To obtain mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law. Dickens v. Court of Appeals for Second Supreme Judicial Dist., 727 S.W.2d 542, 548 (Tex.Crim.App. 1987)(orig. proceeding). Chapter 64 of the Code of Criminal Procedure provides that a convicted person may file in the convicting court a motion for forensic DNA testing of evidence containing biological material. See Tex.Code Crim.Proc.Ann. art. 64.01(a)(Vernon 2006). A convicted person is entitled to counsel during a proceeding for forensic DNA testing. Tex.Code Crim.Proc.Ann. art. 64.01(c). However, appointment of counsel under Article 64.01(c) is not a purely ministerial act. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex.Crim.App. 2003). As amended in 2003, under Article 64.01(c) the convicting court is required to appoint counsel only if it determines that the convicted person is indigent and finds reasonable grounds for a motion to be filed. See Tex.Code Crim.Proc.Ann. art. 64.01(c); see also Acts of 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex.Gen.Laws 2, 2-3 [2001 version of Article 64.01(c)]. To establish that the trial court abused its discretion by failing to rule on a motion, the Relator must show the trial court: (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Chavez, 62 S.W.3d 225, 228 (Tex.App--Amarillo 2001, orig. proceeding). A trial court is required to consider and rule upon a motion within a reasonable time. In re Bonds, 57 S.W.3d 456, 457 (Tex.App.--San Antonio 2001, orig. proceeding). When a motion has been properly and has been brought to the court’s attention, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. See id.; see also In re Cash, 99 S.W.3d 286, 288 (Tex.App.--Texarkana 2003, orig. proceeding)(conditionally granting writ of mandamus when the trial court failed to rule on a motion for forensic DNA testing for five months). Relator has failed to provide a copy of his motion requesting appointment of counsel or his motion requesting forensic DNA testing as an attachment to his petition, therefore we cannot determine whether he presented the court with any basis for finding there were reasonable grounds for the motion. See Tex.Code Crim.Proc.Ann. art. 64.01(c). Without such evidence, we cannot determine whether the trial court abused its discretion by failing to act or rule on Relator’s motions. Moreover, because Relator has failed to provide a copy of his motion requesting forensic DNA testing, this Court cannot determine whether Relator’s complied with the requirements set forth in Article 64.01(a), namely whether the motion was accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion. See Tex.Code Crim.Proc.Ann. art. 64.01(a). To extent Relator seeks mandamus against the district clerk and district attorney’s office, we have no authority to issue a writ of mandamus to the district clerk or the district attorney’s office in this case. See Tex.Gov’t Code Ann. § 22.221(a),(b)(Vernon 2004). Because the Relator has not shown that he is entitled to any of the relief sought, the petition for writ of mandamus is denied. March 8, 2007 ANN CRAWFORD McCLURE, Justice Before Chew, C.J., McClure, and Carr, JJ. (Do Not Publish)