
NO. 07-09-0006-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL B



JANUARY 16, 2009



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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 320
th
 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

