
NO. 07-04-0426-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 20, 2004

______________________________


IN RE JAMES WARREN BRIGHT, RELATOR

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	Relator James Warren Bright, an indigent inmate, seeks a writ of mandamus to
compel the Honorable Andrew Kupper, Judge of the 137th District Court of Lubbock
County, sitting by assignment, to issue a final ruling in cause number 16,336 so he may
file an appeal.  Under applicable rules and principles, we deny his petition.
	Relator was convicted of aggravated rape in the mid-1970's.  Following the
enactment of chapter 64 of the Texas Code of Criminal Procedure, which allows for
forensic DNA testing under certain circumstances, relator requested appointment of
counsel pursuant to article 64.01(c) to prosecute his motion for DNA testing. (1)  After a
hearing, relator was declared indigent and provided with court-appointed counsel for
pursuing his chapter 64 motion.  
	According to relator's allegations, a hearing was held on June 18, 2003, after which
the court ordered that Wade Jackson of the Lubbock County District Attorney's office
determine if a viable sample existed for DNA testing and inform the court and parties of the
results of his search.  The court further ordered that Barbara Sucsy, District Clerk of
Lubbock County, provide the reporter's record of the original proceedings to relator free of
cost.  Relator also claims he was granted permission to review four files in the Lubbock
County District Clerk's office and receive free copies of requested pages.
	The scant record before us contains a copy of a letter from relator's court-appointed
counsel dated July 12, 2003, in which he indicates the State determined there was no
material available on which to conduct DNA testing due in part to a court order dated April
6, 2001, which authorized the destruction of exhibits introduced prior to December 31,
1986.  A certified copy of the court's order is included in the record.  Also included in the
record is a letter from the State in which Wade Jackson indicated that his office did not
have any biological material in its possession.  Jackson also noted that upon further
investigation, he discovered that due to the age of the case, all items had been destroyed. 
	Relator complains that no final order in cause number 16, 336 has been entered to
dispose of his motion for DNA testing which was allegedly heard on June 18, 2003.  He
requests we compel Judge Kupper to proceed to final disposition so he may challenge the
ruling by direct appeal.
	Mandamus is an extraordinary remedy available only in limited circumstances
involving manifest and urgent necessity and not for grievances that may be addressed by
other remedies.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).  Relator must satisfy
three requirements to establish his entitlement to the issuance of a writ of mandamus, to-wit: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. 
Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).  Also, a party requesting relief must
provide a sufficient record to establish his entitlement to mandamus relief.  Walker, 827
S.W.2d at 837; see also In re Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig.
proceeding).
	When a motion is properly filed and pending before a trial court, the act of
considering and ruling upon the motion is a ministerial act.  Eli Lilly and Co. v. Marshall,
829 S.W.2d 157 (Tex.1992).  This includes rulings on motions for DNA testing and the
appointment of counsel for the purpose of pursuing DNA testing pursuant to chapter 64 of
the Texas Code of Criminal Procedure.  In re Dimas, 88 S.W.3d 349, 351 (Tex.App.-San
Antonio 2002, orig. proceeding).  A trial court must consider and rule upon a motion within
a reasonable period of time, and whether a reasonable time period has lapsed depends
on the circumstances of each case.  Barnes v. State, 832 S.W.2d 424, 426
(Tex.App.-Houston [1st Dist. 1992, orig. proceeding).  No bright line demarcates a
reasonable time period; however, many indicia are influential, such as the trial court's
knowledge of the motion, the status of the court's docket, and other judicial and
administrative matters that must be addressed.  In re Villareal, 96 S.W.3d 708, 711
(Tex.App.-Amarillo 2003, orig. proceeding); Bates, 65 S.W.3d at 135.
	The record before us does not contain a copy of the motion allegedly filed by relator
in which he requested DNA testing nor any indication that a hearing on the motion was
held on June 18, 2003.  Although the letter from his court-appointed counsel is some
indication that the State was requested to investigate the existence, if any, of biological
material for DNA testing, there is nothing before us to demonstrate that a motion for DNA
testing was filed and whether a hearing was conducted.  
	We recognize that a court of appeals may issue a writ of mandamus to compel a
trial court to proceed to judgment; however, such an extraordinary remedy should be
utilized only when the relator satisfies his burden to show that there was a duty to perform,
a refusal to act, or where the circumstances evidence the futility of making a demand. 
Weber v. Snell, 539 S.W.2d 363, 367 (Tex.Civ.App.-Houston [1st Dist.] 1976, orig.
proceeding), citing Harney v. Pickens, 120 Tex. 268, 37 S.W.2d 717, 718 (Tex. 1931). 
Relator has not provided this Court with a sufficient record showing that a properly filed
motion for DNA testing was filed, heard, or that a request for the trial court to enter a ruling
was made followed by a refusal to do so.  Stoner, 586 S.W.2d at 946.
	Accordingly, relator's petition for writ of mandamus is denied.

						Don H. Reavis
						    Justice
1. Counsel was appointed following a hearing in the trial court pursuant to this Court's
order of abatement and remand in cause number 07-03-0079-CR, by which relator
attempted to appeal the trial court's refusal to appoint counsel to represent him in his
chapter 64 proceeding.

