In re Adrian Ashley Wheatfall--Appeal from 180th District Court of Harris County

Opinion issued July 26, 2007

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00357-CR

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IN RE ADRIAN WHEATFALL, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator Adrian Wheatfall has filed a pro se petition writ of mandamus. In his petition, relator complains that the 180th District Court has not acted on his request for post-conviction DNA testing of evidence and that the court has not appointed counsel to assist him in presenting his motion.

We deny the petition for writ of mandamus. There are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding). Relator has not provided us with a record that shows that he made any request of respondent to perform a nondiscretionary act that respondent refused.

The petition for writ of mandamus is therefore denied.

It is so ORDERED.

PER CURIAM

Panel consists of Chief Justice Radack, Justices Keyes and Higley.

Do not publish. Tex. R. App. P. 47.2(b).