                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00354-CR

                     IN RE JAMES DEWAYNE MCHENRY



                                Original Proceeding


                          MEMORANDUM OPINION


      James DeWayne McHenry asserts a “right to D.N.A. testing” by an uncited

“holding of the U.S. Supreme Court.” This is indicative of a number of procedural

problems with this petition for writ of mandamus in which he seeks to have this Court

compel the trial court to replace appointed counsel in his post-conviction Chapter 64

D.N.A. testing proceeding.

      The “right” to post-conviction D.N.A. testing is entirely a creature of statute. See

TEX. CODE CRIM. PROC. ANN. art. 64.01, et seq. (West 2006 & Supp. 2013). Adherence to

and compliance with the statute is required to obtain relief. See id. arts. 64.01; 64.03.

Likewise, for us to compel the trial court to take some action via mandamus, the

petition must comply with the requirements to qualify for the issuance of a writ of
mandamus. See TEX. R. APP. P. 52.

       McHenry has wholly failed to provide any record that would entitle him to any

relief by way of a writ of mandamus. Id. 52.3(k). First and foremost, he asks us to

compel the trial court to appoint a different attorney to assist him in his Chapter 64

proceeding seeking D.N.A. testing of biological materials. But that is a discretionary act

that we cannot grant by mandamus. See State ex rel. Young v. Sixth Judicial Dist. Court of

Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). Further, we have

absolutely no record in this proceeding that indicates McHenry has made this request of

the trial court, that he has brought his request to the attention of the trial court, and that

the trial court has failed or refused to rule on such a motion. See In re Chavez, 62 S.W.3d

225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); In re Schmotzer, No. 10-13-00204-

CR, 2013 Tex. App. LEXIS 12643 (Tex. App.—Waco Oct. 10, 2013, orig. proceeding) (not

designated for publication).

       McHenry’s petition for writ of mandamus must be and is denied because he has

not made a proper request and provided a record upon which we can grant relief.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Petition denied
Opinion delivered and filed December 12, 2013
Do not publish
[OT06]

In re McHenry                                                                           Page 2
