in Re Leonard Wayne Kitt

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Opinion issued December 4, 2008





























In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00450-CR

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IN RE LEONARD WAYNE KITT, Relator



Original Proceeding on Petition for Writ of Mandamus



MEMORANDUM OPINION

Relator, Leonard Wayne Kitt, has filed in this Court a pro se petition for writ of mandamus complaining that no action has been taken on his post-conviction (1) request for appointment of counsel and DNA (2) testing. See generally Tex. Code Crim. Proc. Ann. arts. 64.01, 64.05 (Vernon Supp. 2008). We deny the petition for writ of mandamus.

First, relator's petition does not meet the requirements of the Texas Rules of Appellate Procedure. For example, it does not include a designation of parties, a table of contents, an index of authorities, or an appendix that contains a certified or sworn copy of the motion requesting appointment of counsel and DNA testing. See Tex. R. App. P. 52.2, 52.3 (b) (c) (j). Additionally, relator does provide a record that is sufficient to demonstrate that the trial court judge received the motion for appointment of counsel and failed to rule. No requirement exists that a court consider a motion not called to its attention. Metzger v. Sebec, 892 S.W.2d 20, 49 (Tex. App.--Houston [1st Dist.] 1994, writ denied).

Moreover, 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. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). The record provided is insufficient to show that Relator made a request to the trial court judge to rule on his motion and that the trial court judge then refused to rule.

The petition for writ of mandamus is denied.

It is so ORDERED.

PER CURIAM



Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish.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





1. A jury convicted Kitt, in cause number 643412, of the offense of capital murder and assessed his punishment at confinement for life. The Texarkana Court of Appeals affirmed the conviction. Kitt v. State, 875 S.W.2d 19, (Tex. App.--Texarkana 1994, pet' ref'd).

2.

Relator previously appealed a first motion for DNA testing that was denied by the trial court on May 14, 2004. On September 29, 2005, this Court affirmed the trial court's order denying relator's request for DNA testing). See 2005 WL 2385619, Tex. App. Hou. [1st Dis.] 2005.