                            NUMBER 13-11-00575-CR

                               COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


                              IN RE EDWARD CANO


                       On Petition for Writ of Mandamus.


                            MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
                  Memorandum Opinion Per Curiam

      Edward Cantu (“relator”) is a pro se inmate serving a 20-year prison sentence for

sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2003). Relator is

seeking to pursue a motion for forensic DNA testing under Chapter 64 of the Texas

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art 64.01, et seq. (West

Supp. 2010). Relator has filed a petition for appointment of counsel and a supporting

affidavit in cause number CR-056-08-G in the convicting court, the 370th district court of

Hidalgo County, Texas, the Honorable Noe Gonzalez (“respondent”) presiding. See
TEX. CODE CRIM. PROC. ANN. art 64.01(c) (West Supp. 2010). Alleging that respondent

has not yet ruled on his petition for appointment of counsel, relator has filed a petition

for writ of mandamus, asking this Court to direct respondent to set a hearing date for

relator’s petition for appointment of counsel. For the reasons set forth below, we deny

the petition for writ of mandamus.

                                 I. LEGAL STANDARD

       To be entitled to mandamus relief, relator must establish both 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). If relator fails to meet these requirements, then the petition for writ of

mandamus should be denied. See id. It is relator’s burden to properly request and

show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex.

App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of

mandamus must show himself entitled to the extraordinary relief he seeks.”).

                                      II. ANALYSIS

       In the case at bar, relator seeks to compel respondent to hold a hearing on his

petition for appointment of counsel; however, there is nothing in Chapter 64 that

requires the trial court to hold a hearing on a motion for appointment of counsel. Under

article 64.01(c), an indigent person seeking DNA testing is entitled to appointed counsel

only if the trial court finds reasonable grounds for a testing motion to be filed. See TEX.

CODE CRIM. PROC. ANN. art. 64.01(c). Because the appointment of counsel under article

64.01(c) is not a ministerial act, mandamus will not lie to correct errors in the refusal to



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appoint counsel or to hold a hearing on a request for appointment of counsel. See In re

Ludwig, 162 S.W.3d 454, 454-55 (Tex. App.—Waco 2005, orig. proceeding) (citing

Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (appellate court reviews

for abuse of discretion a trial court’s finding concerning reasonable grounds in

determining whether to grant a hearing on motion for new trial)).

      Furthermore, the denial of a motion for appointment of counsel in a proceeding

involving a motion for post-conviction DNA testing is not immediately appealable, but

the issue may be raised on appeal from an order denying a motion for DNA testing.

See Gutierrez v. State, 307 S.W.3d 318, 322-23 (Tex. Crim. App. 2010) (“The better

course is for a convicted person to file a motion for DNA testing and, if and when the

motion is denied, appeal any alleged error made by the trial judge in refusing to appoint

counsel. If a reviewing court determines that the trial judge erred in failing to appoint

counsel, then the case will be remanded to the trial court so the convicted person can

file a subsequent motion for DNA testing with the assistance of counsel.”). Thus, the

denial of a request for appointment of counsel in a Chapter 64 proceeding is not subject

to appeal unless the relator files a pro se motion for post-conviction DNA testing and the

trial court denies the motion in an appealable order. See In re Weisinger, No. 12-10-

00447-CR, 2011 Tex. App. LEXIS 523, *2 (Tex. App.—Tyler Jan. 26, 2011, orig.

proceeding) (mem. op.); In re Layton, No. 07-10-00330-CV, 2010 Tex. App. LEXIS

7418, *3 (Tex. App.—Amarillo Sept. 8, 2010, orig. proceeding) (mem. op.). Under such

circumstances, relator’s remedy would be by appeal and not through an original

mandamus proceeding.       In re Shank, No. 09-10-00414-CV, 2010 Tex. App. LEXIS

9718, *2 (Tex. App.—Beaumont Dec. 9, 2010, orig. proceeding) (mem. op.).



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                                     III. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus is of the opinion that the petition should be denied. Accordingly, because

relator has failed to demonstrate that he is entitled to extraordinary relief, the petition for

writ of mandamus is denied.


                                                          PER CURIAM


Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
12th day of October, 2011.




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