                                     NUMBER 13-09-628-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                                IN RE: ISAAC DUANE WHITE


                             On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

                    Before Justices Yañez, Benavides, and Vela
                        Per Curiam Memorandum Opinion1

        Relator, Isaac Duane White, pro se, filed a petition for writ of mandamus in the

above cause on November 19, 2009, by which he requests this Court to compel the

respondent, presiding judge of the 377th District Court in Victoria, Texas, to hold a hearing

on his motion for DNA testing in trial court cause number 93-2-15. According to relator, the

requested testing is material and will establish his innocence. Relator has not provided this

Court with a copy of his motion.

        Mandamus relief may be granted if the relator shows that: (1) the act sought to be


        1
          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
compelled is purely ministerial; and (2) there is no adequate remedy at law.2 The relator

must have a “clear right” to the relief sought and the merits of the relief sought must be

“beyond dispute.”3 “The requirement of a clear legal right necessitates that the law plainly

describes the duty to be performed such that there is no room for the exercise of

discretion.”4

       To obtain DNA testing under chapter 64 of the code of criminal procedure, several

requirements must be met, including that: (1) “the evidence . . . still exists and is in a

condition making DNA testing possible”; (2) “identity was or is an issue in the case;” and

(3) “the convicted person establishes by a preponderance of the evidence that . . . the

person would not have been convicted if exculpatory results had been obtained through

DNA testing.”5 Nothing in article 64.03 requires a hearing of any sort concerning the trial

court’s determination of whether a defendant is entitled to DNA testing.6

       The Court, having examined and fully considered the petition for writ of mandamus,

is of the opinion that relator has not shown himself entitled to the relief sought.

Accordingly, the petition for writ of mandamus is DENIED.7


                                                                            PER CURIAM


Do not publish. See TEX . R. APP. P. 47.2(b).
Delivered and filed
the 24th day of November, 2009.


       2
           See Deleon v. Dist. Clerk, 187 S.W .3d 473, 474 (Tex. Crim . App. 2006) (orig. proceeding).

       3
           See id.

       4
           See id.

       5
           See T EX . C OD E C R IM . P R O C . A N N . art. 64.03 (a) (Vernon Supp. 2009).

       6
           See id.; Rivera v. State, 89 S.W .3d 55, 58-59 (Tex. Crim . App. 2002).

       7
           See T EX . R. A PP . P. 52.8(a).

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