in Re Milton Louis Williams

IN re Milton Louis WIlliams






IN THE

TENTH COURT OF APPEALS


No. 10-03-00402-CR


IN RE MILTON LOUIS WILLIAMS




Original Proceeding

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Milton Louis Williams seeks a writ of mandamus compelling Respondent, the Honorable Robert Stem, Judge of the 82nd District Court of Robertson County, to appoint counsel and to grant his motion for post-conviction DNA testing filed under Chapter 64 of the Code of Criminal Procedure.

      To prevail in a mandamus proceeding, the petitioner must establish that: (1) the act sought to be compelled is purely ministerial; and (2) he has no adequate remedy at law. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding). Respondent has appointed counsel for Petitioner. The Legislature has provided for an appeal from the denial of a motion for DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2004)). However, the pendency of this original proceeding has delayed the commencement of an appeal by Petitioner.

      To ensure that Petitioner’s appellate remedy is an adequate legal remedy, we reset the appellate timetable such that Petitioner’s notice of appeal is due within thirty (30) days after the date of this opinion, and if notice of appeal is filed, the record shall be due within ninety (90) days after the date of this opinion. See Whitehead v. State, No. 2077-02, slip op. at 22, 2004 Tex. Crim. App. LEXIS 568, at *36 (Tex. Crim. App. Mar. 31, 2004).

      Because Petitioner has an adequate remedy at law, the petition is denied. See Rosenthal, 98 S.W.3d at 198 n.3.


                                                                   PER CURIAM


Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray concurring and dissenting)

Writ denied

Opinion issued and filed May 26, 2004

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