                                        NO. 12-13-00205-CR

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

IN RE:                                                    §

DANNY DALE WEISINGER, SR.,                                §        ORIGINAL PROCEEDING

RELATOR                                                   §

                                        MEMORANDUM OPINION
         In this original proceeding, Relator, Danny Dale Weisinger Sr., seeks a writ of mandamus
directing the trial court to appoint counsel to assist him in preparing a motion for forensic DNA
testing. The respondent is the Honorable Pam Foster Fletcher, Judge of the 349th Judicial
District Court of Houston County. We deny the petition.


                                           PROCEDURAL HISTORY1
         Relator was indicted in the 349th District Court for aggravated assault with a deadly
weapon, convicted, and sentenced to imprisonment for twenty years.2 Thereafter, Relator filed a
motion for appointment of counsel to assist him in filing an order for DNA testing. He also
complained to the trial court in writing about his appellate counsel.
         At a hearing on February 13, 2004, the Honorable Jim Parsons, Judge of the 3rd Judicial
District Court of Houston County, granted Relator‘s request for ―substitution of counsel.‖ He
informed Relator that he would appoint another attorney to ―handle both issues‖—the appeal and


         1
          The procedural history of this case is derived from the records in this proceeding and in this court‘s cause
numbers 12-03-00274-CR and 12-12-00278-CR. An appellate court may take judicial notice of its own records in
the same or related proceedings involving the same or nearly the same parties. See Fletcher v. State, 214 S.W.3d 5,
7 (Tex. Crim. App. 2007).
         2
            See Weisinger v. State, No. 12-03-00274-CR, 2004 WL 3103643, at *1 (Tex. App.–Tyler Jan. 12, 2005,
pet. ref‘d) (mem. op., not designated for publication). This court affirmed Relator‘s conviction. See id.
―the DNA.‖ However, the notation on the trial court‘s docket sheet includes no reference to the
DNA issue.
        Relator‘s new counsel was notified of his appointment by a document entitled ―Order
Relating to Indigency and Appointment of Counsel.‖                     This document does not include a
reference to the DNA issue. Judge Parsons did not sign a written order memorializing his ruling
on the DNA issue and never informed counsel that he was to represent Relator on that issue.
        Ten months later, Relator filed a second motion requesting appointment of counsel for
DNA purposes, which he identified as a motion to reconsider. The following month, he filed a
motion requesting a ruling. The face of this motion bears the handwritten notation ―Denied Jim
Parsons 2.7.05.‖
        On December 30, 2010, Relator filed an original proceeding complaining of Judge
Parsons‘ failure to issue a written order memorializing his oral appointment of counsel on the
DNA issue.3 We denied relief in that proceeding and in another proceeding filed in 2011, in
which Relator raised the same issue. See generally In re Weisinger, No. 12-12-00278-CR, 2013
WL 776355 (Tex. App.–Tyler Feb. 28, 2013, orig. proceeding) (mem. op., not designated for
publication); In re Weisinger, No. 12-10-00447-CR, 2011 WL 241949 (Tex. App.–Tyler
Jan. 26, 2011, orig. proceeding) (mem. op., not designated for publication).
        In the present proceeding, Relator again asserts that the trial court abused its discretion by
failing to issue a written order appointing counsel on the DNA issue. Judge Parsons has ―ceased
to hold office,‖ see TEX. R. APP. P. 7.2(a), and in the prior proceedings, Judge Fletcher did not
have the opportunity to address the underlying issue. Therefore, we abated this proceeding and
asked Judge Fletcher to reconsider Judge Parsons‘ denial of Relator‘s motion to reconsider and
forward her ruling to this court. See TEX. R. APP. P. 7.2(b). Judge Fletcher concluded that Judge
Parsons did not abuse his discretion in overruling Relator‘s motion to reconsider. She filed
findings of fact to support her conclusion, which included a finding that Relator failed to satisfy
the statutory requirements for appointment of counsel.




        3
           A relator‘s failure to show ―diligent pursuit‖ of his complaint may justify denial of mandamus relief. In
re State ex rel. Helbig, 985 S.W.2d 189, 192 (Tex. App.–San Antonio 1998, orig. proceeding). However, Relator
explained that the delay was due to the court reporter‘s failure, for almost six years, to file the record of the
February 13, 2004 hearing. Relator also described, and provided documentation showing, his own diligence in
attempting to have the record prepared and filed. Therefore, we addressed the merits of Relator‘s petition.


                                                         2
                                  PREREQUISITES TO MANDAMUS
        To establish that mandamus relief is appropriate, a relator must show 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)
(orig. proceeding). If the relator fails to satisfy either aspect of this two part test, relief should be
denied. Id.
        An act is ministerial ―when the law clearly spells out the duty to be performed . . . with
such certainty that nothing is left to the exercise of discretion or judgment.‖ State ex rel. Healey
v. McMeans, 884 S.W.2d 772, 774 Tex. Crim. App. 1994) (orig. proceeding) (en banc).
However, a ―discretionary‖ function may become ―ministerial‖ when the facts and circumstances
dictate but one rational decision. Buntion v. Harmon, 827 S.W.2d 945, 948 n.2 (Tex. Cri. App.
1992) (orig. proceeding).
        An order denying a request for appointed counsel to assist in filing a motion for
postconviction DNA testing is not immediately appealable. Gutierrez v. State, 307 S.W.3d 318,
322 (Tex. Crim. App. 2010).


                      RIGHT TO APPOINTMENT OF COUNSEL–DNA TESTING
        A criminal defendant proved guilty after a fair trial does not have the same liberty
interests as a free man. Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S.
52, 68, 129 S. Ct. 2308, 2320, 174 L. Ed. 2d (2009). Consequently, there is no substantive due
process ―freestanding right to DNA evidence‖ under the federal constitution. Id., 557 U.S. at 72,
129 S. Ct. at 2322. Moreover, a defendant who has already been found guilty at a fair trial has
only a limited interest in postconviction relief. See id., 557 U.S. at 69, 129 S. Ct. at 2320. Thus,
the state has more flexibility in deciding what procedures are needed in the context of
postconviction relief.      Id.    But a state‘s postconviction relief procedures cannot be
―fundamentally inadequate to vindicate the substantive rights provided.‖ See id.
        In 2001, the Texas Legislature added Chapter 64 of the Texas Code of Criminal
Procedure. This chapter prescribes the procedure for a ―convicted person‖ to obtain forensic
DNA testing. Act of April 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 Tex. Gen. Laws 2 (to be
codified at TEX. CODE CRIM. PROC. ANN. arts. 64.01-.05). As originally enacted, Article 64.01(c)



                                                   3
provided that a convicted person was entitled to appointed counsel in a Chapter 64 proceeding if
he informed the convicting court that he wished to submit a motion for DNA testing and the
court determined that the person was indigent.                 Id., 2001 Tex. Gen. Laws 2, 4.              If these
requirements were satisfied, the trial court had a ministerial duty to appoint counsel. Winters v.
Presiding Judge of the Criminal Dist. Court Number Three of Tarrant Cnty., 118 S.W.3d 773,
775 (Tex. Crim. App. 2003) (orig. proceeding).
        In 2003, the legislature limited a convicted person‘s right to appointed counsel. See Act
of April 25, 2003, 78th Leg., R.S., ch. 13, § 5, 2003 Tex. Gen. Laws 16, 16. Under the amended
version of Article 64.01(c), a convicted person is entitled to appointed counsel if he informs the
court that he wishes to submit a motion for DNA testing, the court finds reasonable grounds for a
motion to be filed, and the court determines the person is indigent.4 Id.
        Generally, reasonable grounds are present when the facts stated in the request for counsel
or otherwise known to the convicting court reasonably suggest that a ―valid‖ or ―viable‖
argument for testing can be made. Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App.
2011). The basic requirements for ―reasonable grounds‖ are that biological evidence exists, that
the condition of the evidence allows it to be tested, that the identity of the perpetrator is or was
an issue, and that the case is the type in which exculpatory DNA results would make a
difference. Id.; see also TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (West Supp. 2014).


                                               MINISTERIAL ACT
        Relator argues that he has been denied the opportunity to exercise his statutory right for
DNA analysis because Judge Parsons failed to sign an order for the appointment of counsel
pursuant to Chapter 64 of the Texas Code of Criminal Procedure. As we explain below,
however, Relator has not shown that the act he seeks to compel is ministerial.
First Motion for Appointment of Counsel
        On November 17, 2003, Relator filed his first motion requesting counsel to assist him in
obtaining an order for DNA testing. The ―reasonable grounds‖ requirement of Article 64.01(c)
was effective seventy-seven days earlier on September 1, 2003. See Act of April 25, 2003, 78th
Leg., R.S., ch. 13, § 9, 2003 Tex. Gen. Laws 16, 17. However, Relator alleged only that he

        4
           These requirements have remained unchanged. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West
Supp. 2014). Therefore, in the remainder of this opinion, we cite to the current version of Article 64.01(c) for ease
of reference.


                                                         4
sought DNA testing to prove that the ―hammer handle‖ introduced into evidence at his trial ―was
not the object used to cause the injuries of the victim.‖ He did not allege the basic ―reasonable
grounds‖ for the filing of a DNA motion. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a); Ex
parte Gutierrez, 337 S.W.3d at 891. Consequently, the trial court could not have found that
reasonable grounds existed for the filing of a motion for DNA testing.
       At the hearing, the prosecutor informed Judge Parsons that Relator had not properly
presented his motion, but expressed her opinion that ―the Court needs to examine his motion for
counsel – appointment of counsel for DNA examination.‖ Judge Parsons granted the motion
without any mention of the required findings. On the same day (February 13, 2004), the ―Order
Relating to Indigency and Appointment of Counsel‖ was signed by a person designated as
―Counsel Coordinator, Asst.‖ and included no reference to the appointment of counsel for the
DNA issue.
       Ordinarily, our analysis would end here because, except in matters of sentencing, a trial
court‘s written order controls over its oral announcement. Compare Eubanks v. State, 599
S.W.2d 815, 817 (Tex. Crim. App 1980) (―The written order of the court controls over an oral
announcement.‖), with Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (―[W]hen
there is a variation between the oral pronouncement of sentence and the written memorialization
of the sentence, the oral pronouncement controls.‖). However, Judge Parsons did not sign the
―Order Relating to Indigency and Appointment of Counsel.‖ Therefore, we will assume, for
purposes of analysis, that this document had no effect on his oral ruling.
Second Motion for Appointment of Counsel (Motion to Reconsider)
       Approximately ten months after Judge Parsons‘ oral ruling, Relator filed a ―Motion to
‗Reconsider‘ Said Motion For (DNA) Testing Pursuant to Article 64, Code of Criminal
Procedure.‖ He alleged that he wished to submit a motion for DNA testing pursuant to Texas
Code of Criminal Procedure Chapter 64, that he was indigent, and that he was requesting the
appointment of counsel pursuant to Article 64.01(c). He stated further that the sole purpose of
the DNA testing ―is to establish a fact, as whether an object was connected to a particular
incident, whether it be criminally, or accidental. The issue in the appellant‘s case is that it is
considered to be criminally associated.‖ But he did not allege ―reasonable grounds‖ for a DNA
motion to be filed. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a); Ex parte Gutierrez, 337




                                                 5
S.W.3d at 891. The following month, Relator requested a ruling on this motion. Judge Parsons
denied the motion by a handwritten notation dated February 7, 2005.
         As we stated earlier, a trial court may appoint counsel only if it determines that the
convicted person is indigent and finds reasonable grounds for a DNA motion to be filed. See
TEX. CODE CRIM. PROC. ANN. art. 64.01(c). Consequently, appointment of counsel is no longer a
purely ministerial act. See id.; In re Ludwig, 162 S.W.3d 454, 454-55 (Tex. App.–Waco 2005,
orig. proceeding). Moreover, as we have already noted, Relator did not allege ―reasonable
grounds‖ for filing a DNA motion. And so this is not a situation in which, under the facts and
circumstances, Judge Parsons had no discretion to deny Relator‘s motion for appointment of
counsel. See Buntion, 827 S.W.2d at 947 n.2. Therefore, Relator has not shown that the act he
seeks to compel (the issuance of an order appointing counsel for DNA purposes) is ministerial.5


                                                   CONCLUSION
         Because Relator has not shown that the act he seeks to compel is ministerial, he has not
shown his entitlement to mandamus relief. See Young, 236 S.W.3d at 210. Accordingly, we
deny his petition for writ of mandamus. All pending motions are dismissed as moot.

                                                                              SAM GRIFFITH
                                                                                 Justice

Opinion delivered October 22, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)


         5
           Relator argues, at least implicitly, that Judge Parsons had no discretion to disregard his prior oral ruling.
But an oral ruling is subject to change. See State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App. 2012);
Elliott v. Lewis, No. 05-91-01216-CV, 1994 WL 709333, at *8 (Tex. App.–Dallas Dec. 16, 1994, no writ) (not
designated for publication) (noting that ―[c]ommon experience shows . . . judges often change their oral rulings‖).


                                                           6
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         OCTOBER 22, 2014


                                         NO. 12-13-00205-CR


                               DANNY DALE WEISINGER, SR.,
                                          Relator
                                            V.
                                  HON. PAM FLETCHER,
                                        Respondent
                                       ORIGINAL PROCEEDING


                      ON THIS DAY came to be heard the petition for writ of mandamus filed
by DANNY DALE WEISINGER, SR., who is the defendant in Cause No. 03CR-035, pending
on the docket of the 349th Judicial District Court of Houston County, Texas. Said petition for
writ of mandamus having been filed herein on June 11, 2013, and the same having been duly
considered, because it is the opinion of this Court that a writ of mandamus should not issue, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby DENIED.
                   Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
