In Re: Lawrence Joseph Tucker--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: LAWRENCE JOSEPH TUCKER,

Relator.

No. 08-05-00208-CR

AN ORIGINAL PROCEEDING

IN MANDAMUS

O P I N I O N

Lawrence Joseph Tucker has filed a pro se petition for writ of mandamus, seeking an order compelling the trial court to rule on his motion for forensic DNA testing and appointment of counsel. For the reasons that follow, we will deny the petition.

Procedural Background

In his petition for writ of mandamus, Relator states that he filed a motion for forensic DNA testing after conviction on December 17, 2003 and filed a motion for appointment of counsel on December 22, 2003. Relator also asserts that he filed a post-conviction writ of habeas corpus on January 13, 2004. // According to the facts related in his petition, it appears that the trial court did appoint counsel to Relator, but Relator complains that appointed counsel refused to obtain a pre-existing DNA forensic report for him.

Relevant Law

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 trial court a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004-05). A person is entitled to counsel during a proceeding for forensic DNA testing. Id. art. 64.01(c). Moreover, a trial court is required to consider and rule on 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 is filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus will issue to compel the trial judge to act. See id.

Discussion

Evidently, the trial court, in fact, appointed counsel to represent Relator on the motion for forensic DNA testing, therefore we conclude that he received at least part of the relief he now seeks by writ of mandamus. With regard to Relator s claim that the trial court failed to rule on his motion for forensic DNA testing, we observe that Relator has failed to attach to his petition a copy of the motion for forensic DNA testing, which should have been accompanied by an affidavit containing statements of fact in support of the motion. See Tex. Code Crim. Proc. Ann. art. 64.01(a). Given there is no evidence that Relator complied with the requirements of Article 64.01, this Court cannot conclude that the trial court abused its discretion or failed to perform a ministerial duty by failing to rule on Relator s motion.

We conclude that Relator is not entitled to mandamus relief at this time. Accordingly, the petition for writ of mandamus is denied.

RICHARD BARAJAS, Chief Justice

June 23, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)