
Opinion issued December 4, 2008
















In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-08-00450-CR
____________

IN RE LEONARD WAYNE KITT, Relator



Original Proceeding on Petition for Writ of Mandamus



MEMORANDUM  OPINION
	Relator, Leonard Wayne Kitt, has filed in this Court a pro se petition for writ of
mandamus complaining that no action has been taken on his post-conviction (1) request
for appointment of counsel and DNA (2) testing.   See generally Tex. Code Crim. Proc.
Ann. arts. 64.01, 64.05 (Vernon Supp. 2008).  We deny the petition for writ of
mandamus.
	First, relator's petition does not meet the requirements of the Texas Rules of
Appellate Procedure.  For example, it does not include a designation of parties, a table
of contents, an index of authorities, or an appendix that contains a certified or sworn
copy of the motion requesting appointment of counsel and DNA testing.  See Tex. R.
App. P. 52.2, 52.3 (b) (c) (j).  Additionally, relator does provide a record that is
sufficient to demonstrate that the trial court judge received the motion for appointment
of counsel and failed  to rule.  No requirement exists that a court consider a motion not
called to its attention.  Metzger v. Sebec, 892 S.W. 2d 20, 49 (Tex. App.--Houston [1st
Dist.] 1994, writ denied).  
	Moreover, there are three prerequisites for the issuance of a writ of mandamus
by an appellate court, namely:  (1) the lower court must have a legal duty to perform
a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the
subject court must refuse that request.   See Barnes v. State, 832 S.W.2d 424, 426 (Tex.
App.--Houston [1st Dist.] 1992, orig. proceeding).   The record provided is insufficient
to show that Relator made a request to the  trial court judge to rule on his motion and
that the trial court judge then refused to rule.	 
	The petition for writ of mandamus is denied.
	It is so ORDERED.
PER CURIAM

Panel consists of Justices Jennings, Hanks, and Bland.
Do not publish.  Tex. R. App. P. 47.2(b).

 


1.     	A jury convicted Kitt, in cause number 643412, of the offense of capital
murder and assessed his punishment at confinement for life.  The Texarkana
Court of Appeals affirmed the conviction.  Kitt v. State,  875 S. W. 2d 19, (Tex.
App.--Texarkana 1994, pet' ref'd).
2.    	Relator previously appealed a first motion for DNA testing that was
denied by the trial court on May 14, 2004.  On September 29, 2005, this
Court affirmed the trial court's order denying relator's request for DNA
testing).  See 2005 WL 2385619, Tex. App. Hou. [1st Dis.] 2005.
 
