In Re: Billy G. Colvin--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00159-CV

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IN RE: BILLY G. COLVIN

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Billy G. Colvin has filed a petition for writ of mandamus in which he asks us to order his appointed attorney, Mike Martin, and the Honorable Lauren Parish, Judge of the 115th Judicial District Court, to provide him with justice. On August 6, 2002, this Court issued a mandamus ordering the trial court to provide a copy of the motion for DNA testing to the State and then proceed with Colvin's motion for DNA testing as required by Tex. Code Crim. Proc. Ann. art. 64.02 (Vernon Supp. 2004).

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion, or in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

Colvin now complains that his attorney, appointed for the DNA hearing by the trial court, has not been willing to communicate with him, that the trial court has not seen that justice was done pursuant to our prior order, and that his attorney was necessarily constitutionally ineffective for failing to keep him apprised of the progress of his case.

This Court has jurisdiction to issue a writ of mandamus against a "judge of a district or county court in the court of appeals district." Tex. Gov't Code Ann. 22.221(b) (Vernon Supp. 2004). Accordingly, we have no jurisdiction to consider the complaints against Colvin's attorney.

Colvin's complaints about the trial court suggest that a hearing was conducted May 28, 2003, and that an order was entered on that date which was not provided to him. We have contacted the district clerk's office in Upshur County. In response, we have received a copy of the court's finding that there was no DNA evidence retrieved and that DNA testing was therefore impossible. The court signed that order August 30, 2002. The clerk's office also informed us that Colvin submitted an "affidavit of testimony" on May 27, 2003, which the trial court treated as a request to reconsider, and overruled it June 23, 2003. Thus, the August 30, 2002, order is the final ruling on the DNA request.

Colvin has not provided this Court with information justifying issuance of a writ of mandamus against the trial court.

The petition is denied.

Jack Carter

Justice

Date Submitted: December 3, 2003

Date Decided: December 4, 2003