In Re: Aldoe Lee Foster--Appeal from 188th District Court of Gregg County

NO. 12-07-00379-CR

NO. 12-07-00380-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: ALDOE LEE FOSTER,

RELATOR ORIGINAL PROCEEDING

MEMORANDUM OPINION

Aldoe Lee Foster was convicted of aggravated robbery and possession of a firearm by a felon, following which he was sentenced to forty years of imprisonment. Foster filed a motion in the trial court requesting postconviction DNA testing on three shell casings and a weapon urging that the DNA testing would establish his innocence. In this original mandamus proceeding, Foster seeks an order requiring the trial court to appoint counsel for him as required by article 64.01(c) of the Texas Code of Criminal Procedure. We deny the petition.

Mandamus will issue only when the record establishes that (1) the act sought to be compelled is purely ministerial and (2) there is no adequate remedy at law. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding). For the act to be clearly ministerial, the relator must have a clear right to the relief sought meaning that the relief sought must be clear and undisputable such that its merits are beyond dispute with nothing left to the exercise of discretion or judgment. Id.

Chapter 64 of the Texas Code of Criminal Procedure prescribes the procedure for postconviction DNA testing. See Tex. Code Crim. Proc. Ann. 64.01 .05 (Vernon 2006). A convicted person is entitled to counsel during a proceeding under Chapter 64. Id. art. 64.01(c). The trial court must appoint counsel for the convicted person if (1) the person informs the court that the person wishes to submit a Chapter 64 motion; (2) the court finds reasonable grounds for the motion to be filed; and (3) the court determines that the person is indigent. Id.

Foster has provided this court with a copy of his motion for DNA testing, which he alleges was filed in July 2007. However, the record does not establish that the trial court has found that reasonable grounds exist for Foster s motion to be filed and that Foster is indigent.1 Because Foster is not entitled to appointed counsel until the trial court makes these findings, see id., he has not shown that he has a clear right to relief. See Poe, 98 S.W.3d at 198. Accordingly, the petition for writ of mandamus is denied.

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 11, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 In his motion for DNA testing, Foster requests appointed counsel, but does not allege any facts relating to his financial condition. On October 5, 2007, we received Foster s mandamus petition and an application to proceed in forma pauperis dated October 2, 2007. The application is not addressed to a specific court, but is dated approximately three months after the Foster s DNA motion was filed. Therefore, we conclude that the application pertains only to this original proceeding.