NUMBER 13-11-00575-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE EDWARD CANO
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion Per Curiam
Edward Cantu (“relator”) is a pro se inmate serving a 20-year prison sentence for
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2003). Relator is
seeking to pursue a motion for forensic DNA testing under Chapter 64 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art 64.01, et seq. (West
Supp. 2010). Relator has filed a petition for appointment of counsel and a supporting
affidavit in cause number CR-056-08-G in the convicting court, the 370th district court of
Hidalgo County, Texas, the Honorable Noe Gonzalez (“respondent”) presiding. See
TEX. CODE CRIM. PROC. ANN. art 64.01(c) (West Supp. 2010). Alleging that respondent
has not yet ruled on his petition for appointment of counsel, relator has filed a petition
for writ of mandamus, asking this Court to direct respondent to set a hearing date for
relator’s petition for appointment of counsel. For the reasons set forth below, we deny
the petition for writ of mandamus.
I. LEGAL STANDARD
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 these requirements, then the petition for writ of
mandamus should be denied. See id. It is relator’s burden to properly request and
show entitlement to mandamus relief. 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.”).
II. ANALYSIS
In the case at bar, relator seeks to compel respondent to hold a hearing on his
petition for appointment of counsel; however, there is nothing in Chapter 64 that
requires the trial court to hold a hearing on a motion for appointment of counsel. Under
article 64.01(c), 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 TEX.
CODE CRIM. PROC. ANN. art. 64.01(c). Because the appointment of counsel under article
64.01(c) is not a ministerial act, mandamus will not lie to correct errors in the refusal to
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appoint counsel or to hold a hearing on a request for appointment of counsel. See In re
Ludwig, 162 S.W.3d 454, 454-55 (Tex. App.—Waco 2005, orig. proceeding) (citing
Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (appellate court reviews
for abuse of discretion a trial court’s finding concerning reasonable grounds in
determining whether to grant a hearing on motion for new trial)).
Furthermore, the denial of a motion for appointment of counsel in a proceeding
involving 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 better
course is for a convicted person to file a motion for DNA testing and, if and when the
motion is denied, appeal any alleged error made by the trial judge in refusing to appoint
counsel. If a reviewing court determines that the trial judge erred in failing to appoint
counsel, then the case will be remanded to the trial court so the convicted person can
file a subsequent motion for DNA testing with the assistance of counsel.”). Thus, the
denial of a request for appointment of counsel in a Chapter 64 proceeding is not subject
to appeal unless the relator files a pro se motion for post-conviction DNA testing and the
trial court denies the motion in an appealable order. See In re Weisinger, No. 12-10-
00447-CR, 2011 Tex. App. LEXIS 523, *2 (Tex. App.—Tyler Jan. 26, 2011, orig.
proceeding) (mem. op.); In re Layton, No. 07-10-00330-CV, 2010 Tex. App. LEXIS
7418, *3 (Tex. App.—Amarillo Sept. 8, 2010, orig. proceeding) (mem. op.). Under such
circumstances, relator’s remedy would be by appeal and not through an original
mandamus proceeding. In re Shank, No. 09-10-00414-CV, 2010 Tex. App. LEXIS
9718, *2 (Tex. App.—Beaumont Dec. 9, 2010, orig. proceeding) (mem. op.).
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III. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus is of the opinion that the petition should be denied. Accordingly, because
relator has failed to demonstrate that he is entitled to extraordinary relief, the petition for
writ of mandamus is denied.
PER CURIAM
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
12th day of October, 2011.
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