                                  NO. 07-10-00330-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  SEPTEMBER 8, 2010


                     IN RE: DAVID MATTHEW LAYTON, RELATOR


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION

       Relator, David Matthew Layton, has filed a Petition for Writ of Mandamus1 with

this Court requesting that we issue writ of mandamus “to compel the Judge of the 251st

Judicial District Court to vacate her order denying relator’s [m]otion for forensic DNA

testing and appoint him [c]ounsel in accordance with [a]rticle 64.01(c) of the Texas

Code of Criminal Procedure. We deny the petition.


       Layton’s petition challenges the trial court’s denial of his motion for post-

conviction DNA testing and appointment of counsel. While a trial court has a ministerial

duty to consider and rule on motions properly filed and pending before the court and

       1
          Texas Rule of Appellate Procedure 52.3 identifies the requirements for a
petition for writ of mandamus filed in this court. While Layton’s petition does not strictly
comply with these requirements, the petition is not so deficient as to preclude this Court
from conducting a meaningful review of the trial court=s order. See In re Johnson, No.
07-03-0471-CV, 2003 Tex.App. LEXIS 10838, at *4-*5 (Tex.App.BAmarillo December
30, 2003, orig. proceeding).
mandamus may issue to compel the judge to act, Safety-Kleen Corp. v. Garcia, 945

S.W.2d 268, 269 (Tex.App.BSan Antonio 1997, orig. proceeding) (citing O=Donniley v.

Golden, 860 S.W.2d 267, 269-70 (Tex.App.BTyler 1993, orig. proceeding)), mandamus

may not be utilized to challenge a particular ruling on a motion. A trial court’s ruling on

a motion is generally discretionary and may be remedied by ordinary appeal. In re

Washington, No. 09-07-246 CV, 2007 Tex.App. LEXIS 6449, at *2 (Tex.App.BBeaumont

August 16, 2007, orig. proceeding) (citing Ex parte Bates, 65 S.W.3d 133, 134-35

(Tex.App.BAmarillo 2001, orig. proceeding)). The appendix to Layton’s petition includes

a copy of the trial court’s order denying his motion, and his petition seeks mandamus

relief to compel the trial court to vacate its order and to appoint Layton counsel. Thus,

by his petition, Layton seeks relief from this Court to compel the trial court to change its

discretionary ruling. Without any identification of an applicable exception to the general

prohibition against using mandamus to alter discretionary rulings, we conclude that we

are without authority to grant Layton the relief sought.


       Further, the denial of a motion for post-conviction forensic DNA testing is an

appealable order, see Layton v. State, Nos. 07-03-0383-CR, 07-03-0384-CR, 07-03-

0385-CR, 2005 Tex.App. LEXIS 1520 (Tex.App.—Amarillo February 24, 2005, pet.

ref’d), and, therefore, direct appeal presents an adequate remedy. Mandamus will not

issue where there is "a clear and adequate remedy at law, such as a normal appeal."

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (quoting State v. Walker, 679

S.W.2d 484, 485 (Tex. 1984)). Mandamus is intended to be an extraordinary remedy,

available only in limited circumstances.     Id.   The requirement that persons seeking

mandamus relief establish the lack of an adequate appellate remedy is a "fundamental
                                             2
tenet" of mandamus practice.      Id. (quoting Holloway v. Fifth Court of Appeals, 767

S.W.2d 680, 684 (Tex. 1989)). As the present circumstance is capable of remedy by

direct appeal, this Court may not grant Layton the relief sought.


      Because mandamus relief is not available in the present circumstances, we deny

Layton’s petition for writ of mandamus.



                                                       Mackey K. Hancock
                                                            Justice




                                            3
