
NO. 07-09-0006-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 16, 2009

______________________________


IN RE BARRY DWAYNE MINNFEE, 

                                                                                                  Relator
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 Opinion on Original Proceeding for Writ of Mandamus
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Pending before the court is the petition from Barry Dwayne Minnfee requesting that
we issue a writ of mandamus against the Honorable Don Emerson, district judge of the
320th Judicial District.  This is one of many which he has filed to date.  Furthermore, the
petition deals with his purported motion to secure DNA testing and the appointment of legal
counsel to represent him in that matter as well as others.  The petition is not verified; nor
does it contain a prisoner’s statement indicating that the factual allegations contained
therein are accurate.  Nor is a copy of the alleged motion for DNA testing attached to or
included with the petition.  Similarly missing is any explanation as to 1) why he believes
himself entitled to such testing under article 64 of the Texas Code of Criminal Procedure
or 2) why our ordering the trial judge to undertake that which he requests would not be
tantamount to ordering the trial court to engage in frivolous acts and the needless waste
of limited judicial resources.
          Additionally, Minnfee asks us to order the trial court to determine that he is an
indigent entitled to appointed counsel.  Yet, that we cannot do for we cannot tell a trial
judge how to rule on motions pending before them before the trial judge himself rules on
them.  See O'Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.–Tyler 1993, orig.
proceeding). 
          Consequently, the petition for writ of mandamus is denied.
 
                                                                           Per Curiam

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							        Justice


