IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 24, 2005
______________________________
IN RE ROBERT UNDERWOOD, RELATOR _________________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINIONIn this original proceeding relator Robert Underwood seeks a writ of mandamus directing the Honorable Ed Self, Judge of the 242nd District Court to "comply with" Chapter 64 of the Code of Criminal Procedure authorizing post-conviction DNA testing. We deny the petition.
Chapter 64 of the Code of Criminal Procedure authorizes a convicted person to seek forensic DNA testing by filing a motion and supporting affidavit in the convicting court. Tex. Code Crim. Proc. Ann. art. 64.01 - .05 (Vernon Supp. 2005). The motion may request testing of evidence in possession of the State during trial of the offense that was not tested or, if previously tested, there is a reasonable likelihood testing with newer techniques would be more accurate and probative than the prior test. Art. 64.01(b). Under subdivision (c) a movant is entitled to assistance of counsel if the movant requests appointment of counsel, the trial court finds reasonable grounds for a motion and it determines the person is indigent. Art. 64.01(c).
Relator's petition is the only document before this court. It does not state the offense of which he was convicted or when that conviction occurred, nor has he attached copies of any documents filed in the trial court as required by Rule of Appellate Procedure 52.3(j). The petition does not contain a prayer clearly stating what relief relator seeks. See Tex. R. App. P. 52.3(i). We construe it as seeking a writ directing the trial court to appoint counsel to represent relator in presenting a motion for DNA testing.
A writ of mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). It is the relator's burden to show entitlement to the relief being requested. See generally Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding ). In Stoner v. Massey, 586 S.W.2d 843 (Tex. 1979), our Supreme Court articulated three elements necessary to show entitlement to a writ of mandamus: first, a legal duty to perform a nondiscretionary act; second, a demand for performance; and third, refusal of that demand. Id. at 846. Relator's petition fails to establish those elements and must be denied.
Relator has failed to meet his burden to show the trial court had a duty to perform a nondiscretionary act. A convicted person's entitlement to appointment of counsel in a proceeding under Chapter 64 is conditioned on findings by the trial court there are reasonable grounds to file the motion and the person is indigent. Art. 64.01(c). Relator has failed to provide a copy of the request for appointment of counsel he filed in the trial court. Consequently, we cannot determine whether he presented any basis on which the trial court could find there were reasonable grounds for the motion. His petition does not allege he established reasonable grounds for the motion to the trial court, or even the existence of evidence subject to testing. Similarly, relator's petition does not show he provided the trial court with a basis to determine he is indigent. There is no indication relator filed an affidavit of indigence in the trial court. These omissions require denial of relator's petition. 586 S.W.2d at 846.
Moreover, relator has not established a demand for performance. Presenting the court with a demand for performance provides the trial court an opportunity to rule on the motion. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [14th Dist.] 1992) (orig. proceeding). In Barnes, the relator sought a writ of mandamus directing the trial court to rule on his motions. Id. at 425. While agreeing the trial court had a duty to rule within a reasonable time, the court noted:
The relator has not provided us with a record that shows that, after he filed his motions, relator asked the trial court for a hearing and ruling on his motions and the trial court refused to hold a hearing and to rule. From this record, it appears the relator did not take any action to alert the trial court that it had not yet considered his two motions.
Id. at 426. Based on this failure, the court denied the petition. Id. Compare Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268 (Tex.App.-San Antonio 1997) (orig. proceeding) (relator had made repeated written requests to court coordinator to schedule hearings on its motion). This omission also requires denial of relator's petition. Barnes, 832 S.W.2d at 426. Finally, without a demand for performance, relator cannot show refusal of that demand by the trial court. For these reasons we deny relator's petition for writ of mandamus.
James T. Campbell
Justice
#160; Here, the evidence shows that Jimmy Henry, his wife Sharon, and daughter Ashland left the house by 7 a.m. on September 12, 2007. When they returned home for lunch, they discovered 1) the deadbolt on the front door had been engaged although it had not been when they left, 2) the back gate was open, 3) the back door had been forced open and the door leading to the garage was open, 4) a weed eater and tools were moved into the living room, 5) computers, monitors, a television, and a DVD player had been unplugged and placed in such a way as to suggest that the intruder was planning to take them, 6) each of the three bedrooms had been ransacked, and 7) numerous items of personalty were missing from the home. Though none of the family members knew appellant, his fingerprints were found on the bottom of the DVD player and on a cell phone box from which the cell phone had been removed. The DVD player had been purchased eight months earlier in a packaged box.
Absent from the record is any direct evidence of others being in the house besides appellant. Nonetheless, appellant argues that the presence of other associates could be inferred from the general upheaval encountered in the house and the magnitude of items moved or taken. If we were to ignore those indicia allegedly suggesting that others were present, we would still find appellant’s fingerprints on various items of displaced property within the home. That would be enough to warrant his conviction for burglary when coupled with the evidence that no one in the family knew him; those circumstances place him in the home gathering personalty without the owner’s knowledge or permission. Consequently, the conduct of others was not needed to establish his guilt, which, according to McCuin, means that the trial court was not obligated to instruct the jury on the law of parties.
Accordingly, we overrule appellant’s issue and affirm the judgment.
Per Curiam
Do not publish.