NUMBERS 13-13-00435-CR & 13-13-00436-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE GEORGE OLIVAREZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Benavides1
Relator, George Olivarez, proceeding pro se, filed a petition for writ of mandamus
in the above causes through which he contends that the trial court failed to issue a
ruling on his motion for appointment of counsel for the purposes of obtaining DNA
1
See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2011).2 We deny
the petition for writ of mandamus.
I. BACKGROUND
In 2000, relator pleaded guilty to two separate charges for indecency with a child
in trial court cause numbers CR-00-145-ES1 and CR-00-146-ES1 in the 148th District
Court of Nueces County, and was sentenced to two concurrent twenty-five year
sentences. See TEX. PEN. CODE ANN. § 21.11 (West Supp. 2011). Relator attempted to
bring a pro se appeal of one of the judgments of conviction, but this Court dismissed the
appeal for lack of jurisdiction. See Olivarez v. State, No. 13-00-00310-CR, 2001 Tex.
App. LEXIS 3676, at *3 (Tex. App.—Corpus Christi May 31, 2001, no pet.) (per curiam)
(not designated for publication) (concerning an appeal from trial court cause number
CR-00-145-ES1 in which relator pleaded guilty, was sentenced pursuant to a plea
bargain, and waived the right of appeal).
Relator thereafter filed motions for DNA testing in the trial court. By petition for
writ of mandamus filed in 2007, relator complained that the trial court had not ruled on
his motions for DNA testing. See In re Olivarez, No. 13-07-00478-CV, 2007 Tex. App.
LEXIS 6141, at **1–3 (Tex. App.—Corpus Christi Aug. 1, 2007, orig. proceeding) (per
curiam) (not designated for publication) (concerning trial court cause number CR-00-
145-ES1). This Court held that relator had not met his burden to show that the trial
court was asked to rule on relator’s motions for DNA testing, but failed or refused to do
so. See id. at *3.
2
Relator also filed a motion for leave to file the petition for writ of mandamus. Relator’s motion
for leave to file his petition for writ of mandamus is dismissed as moot. The Texas Rules of Appellate
Procedure no longer require the relator to file a motion for leave to file an original proceeding. See
generally TEX. R. APP. P. 52 & cmt.
2
On February 16, 2011, relator filed another petition for writ of mandamus
complaining that the Honorable Marisela Saldana, former judge of the 148th District
Court of Nueces County, had failed to rule on relator’s recent motions for DNA testing.
See In re Olivarez, Nos. 13-11-00085-CR & 13-11-00086-CR, 2011 Tex. App. LEXIS
4370, at *2 (Tex. App.—Corpus Christi June 8, 2011, orig. proceeding) (per curiam) (not
designated for publication) (concerning trial court cause numbers CR-00-145-ES1 and
CR-00-146-ES1). In January 2011, former Judge Saldana was succeeded in office by
the Honorable Guy Williams. Id. Accordingly, on February 17, 2011, this Court abated
and remanded the petition for writ of mandamus in order for Judge Saldana’s
successor, the Honorable Guy Williams, to reconsider the matters at issue therein. See
TEX. R. APP. P. 7.2(b) (“If the case is an original proceeding under Rule 52, the court
must abate the proceeding to allow the successor to reconsider the original party’s
decision.”). On June 6, 2011, Judge Williams signed an “Order and Memorandum on
Defendant’s Motion for DNA Testing” denying relator’s request for DNA testing. See In
re Olivarez, 2011 Tex. App. LEXIS 4370, at **4–5. Judge Williams found that there
were no reasonable grounds for granting relator’s motion for DNA testing and concluded
that relator was not entitled to the appointment of an attorney to represent the relator for
the purposes of testing. Id. The State of Texas, acting by and through the District
Attorney of Nueces County, Texas, thereafter filed a response to the petition for writ of
mandamus contending that relator was not entitled to the relief sought. Id. at *3. This
Court dismissed relator’s petition for writ of mandamus as moot. See In re Olivarez,
2011 Tex. App. LEXIS 4370, at *5.
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Relator subsequently appealed the trial court’s June 6, 2011 denial of his
motions for DNA testing and the appointment of counsel. See Olivarez v. State, Nos.
13-11-00483-CR & 13-11-00484-CR, 2012 Tex. App. LEXIS 8745, at *1 (Tex. App.—
Corpus Christi Oct. 18, 2012, no pet.) (mem. op., not designated for publication). This
Court affirmed the trial court’s rulings. See id.
In this original proceeding, relator contends that the trial court has failed to rule
on his January 8, 2013, motion for appointment of counsel pursuant to Texas Code of
Criminal Procedure article 64.01 in both trial court cause numbers CR-00-145-ES1 and
CR-00-146-ES1. The petition for writ of mandamus includes copies of relator’s motion
requesting appointment of counsel, allegedly filed on or about January 8, 2013, but
which is neither dated nor file-stamped, and various letters from relator to the district
clerk, the trial court, and this Court regarding the foregoing events and causes of action.
II. STANDARD OF REVIEW
To be entitled to mandamus relief, relator must establish both that he has no
adequate remedy at law to redress his alleged harm, and that what he seeks to compel
is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young
v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007). If relator fails to meet both of these requirements, then the petition for writ
of mandamus should be denied. See id. Consideration of a request or motion that is
properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726
S.W.2d 125, 128 (Tex. Crim. App.1987) (orig. proceeding).
To obtain mandamus relief for the trial court’s refusal to rule on a motion, a
relator must establish: (1) the motion was properly filed and has been pending for a
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reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court
refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig.
proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig.
proceeding). The relator must show that the trial court received, was aware of, and was
asked to rule on the motion. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—
Texarkana 2008, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—
Amarillo 2003, orig. proceeding).
It is the relator’s burden to properly request and show entitlement to mandamus
relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see
Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself
entitled to the extraordinary relief he seeks.”). In addition to other requirements, the
relator must include a statement of facts supported by citations to “competent evidence
included in the appendix or record,” and must also provide “a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must also file an
appendix and record sufficient to support the claim for mandamus relief. See id. R.
52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the
required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney,
254 S.W.3d at 661.
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III. ANALYSIS
A “convicted person” is entitled to counsel during a proceeding under Texas
Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing), if the
person informs the court that he wishes to submit a motion under Chapter 64, the court
finds reasonable grounds for a motion to be filed, and the court determines that the
person is indigent. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2011).
Under article 64.01(c) of the Texas Code of Criminal Procedure, an indigent person
seeking DNA testing is entitled to appointed counsel only if the trial court finds
reasonable grounds for a testing motion to be filed. See id. Because the appointment
of counsel under article 64.01(c) is not a ministerial act, mandamus will not lie to compel
the appointment of counsel. See In re Ludwig, 162 S.W.3d 454, 454–55 (Tex. App.—
Waco 2005, orig. proceeding). Furthermore, the denial of a motion for appointment of
counsel on a motion for post-conviction DNA testing is not immediately appealable, but
the issue may be raised on appeal from an order denying a motion for DNA testing.
See Gutierrez v. State, 307 S.W.3d 318, 322–23 (Tex. Crim. App. 2010).
The Texas Court of Criminal Appeals has recognized that “Chapter 64 does not
prohibit a second, or successive, motion for forensic DNA testing[.]” Ex parte Baker,
185 S.W.3d 894, 897 (Tex. Crim. App. 2006) (orig. proceeding). The issue in that
original proceeding, however, was whether a statutory post-conviction writ of habeas
corpus was available for complaints of ineffective assistance of counsel on a Chapter 64
motion for DNA testing. See id. The court held it was not. Id. On the same day, the
court of criminal appeals further recognized in another original proceeding that “it is
conceivable that a convicted person who receives ineffective assistance of counsel in a
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DNA proceeding may be entitled to relief by way of a second DNA proceeding.” Ex
parte Suhre, 185 S.W.3d 898, 899 (Tex. Crim. App. 2006) (orig. proceeding).
In contrast, this case does not concern allegations of ineffective assistance of
counsel on a Chapter 64 motion for DNA proceedings and thus Baker and Suhre do not
control our analysis. Further, as pointed out by our sister court, the statutory language
that the Texas Court of Criminal Appeals relied upon in Suhre to state that a successive
motion was not prohibited, thus obviating the need for habeas corpus review of an
allegation of ineffective assistance of counsel, has been removed by amendment of the
statute. See In re Birdwell, 393 S.W.3d at 898 n.2. Nevertheless, assuming without
deciding that the trial court has a duty to rule on successive motions for DNA testing
and the appointment of counsel, we conclude that the instant case does not present
such circumstances.
Relator’s motion for DNA proceedings was fully adjudicated on the merits and
was followed by an appeal of the trial court’s denial of DNA testing and the appointment
of counsel. The record currently before the Court fails to establish that the motion for
appointment of counsel that relator allegedly filed in January is substantively different
from the previous motions for appointment of counsel that that were addressed by the
trial court and were the subject of direct appeal. Further, relator has neither argued nor
shown that this case presents extraordinary circumstances that would compel the trial
court’s consideration of a successive motion for appointment of counsel. We conclude
that relator has not shown that the trial court has abused its discretion in failing to rule
on the motion for DNA testing and the appointment of counsel. See In re Birdwell, 224
S.W.3d at 870 (“If the issue that is the subject of a requested ruling has not previously
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been fully adjudicated, the trial court may have a ministerial duty to rule on the motion.
Thus, no ruling is required in response to a subsequent filing of a motion for DNA
testing, if there has already been a full adjudication in connection with a prior motion for
DNA testing, absent exceptional circumstances.”); see also In re Sims, No. 05-13-
00049-CV, 2013 Tex. App. LEXIS 2777, at *1 (Tex. App.—Dallas Mar. 15, 2013, orig.
proceeding) (mem. op.) (“Relator is not entitled to a writ of mandamus requiring the trial
court to repeatedly rule on the same motion [for DNA testing].”); In re Durden, No. 14-
12-00143-CR, 2012 Tex. App. LEXIS 1412, at **4–5 (Tex. App.—Houston [14th Dist.]
Feb. 23, 2012, orig. proceeding) (mem. op., not designated for publication) (“No ruling is
required in response to a subsequent filing of a motion for DNA testing if there has
already been a full adjudication in connection with a prior motion for DNA testing,
absent exceptional circumstances.”).
IV. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus, is of the opinion that relator has not established his entitlement to the relief
sought. Accordingly, the petition for writ of mandamus in these causes is DENIED. All
further and other relief sought herein is likewise DENIED.
______________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of September, 2013.
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