             NUMBERS 13-13-00435-CR & 13-13-00436-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


                               IN RE GEORGE OLIVAREZ


                          On Petition for Writ of Mandamus.


                           MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Longoria
               Memorandum Opinion by Justice Benavides1

       Relator, George Olivarez, proceeding pro se, filed a petition for writ of mandamus

in the above causes through which he contends that the trial court failed to issue a

ruling on his motion for appointment of counsel for the purposes of obtaining DNA




       1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2011).2 We deny

the petition for writ of mandamus.

                                           I. BACKGROUND

        In 2000, relator pleaded guilty to two separate charges for indecency with a child

in trial court cause numbers CR-00-145-ES1 and CR-00-146-ES1 in the 148th District

Court of Nueces County, and was sentenced to two concurrent twenty-five year

sentences. See TEX. PEN. CODE ANN. § 21.11 (West Supp. 2011). Relator attempted to

bring a pro se appeal of one of the judgments of conviction, but this Court dismissed the

appeal for lack of jurisdiction. See Olivarez v. State, No. 13-00-00310-CR, 2001 Tex.

App. LEXIS 3676, at *3 (Tex. App.—Corpus Christi May 31, 2001, no pet.) (per curiam)

(not designated for publication) (concerning an appeal from trial court cause number

CR-00-145-ES1 in which relator pleaded guilty, was sentenced pursuant to a plea

bargain, and waived the right of appeal).

        Relator thereafter filed motions for DNA testing in the trial court. By petition for

writ of mandamus filed in 2007, relator complained that the trial court had not ruled on

his motions for DNA testing. See In re Olivarez, No. 13-07-00478-CV, 2007 Tex. App.

LEXIS 6141, at **1–3 (Tex. App.—Corpus Christi Aug. 1, 2007, orig. proceeding) (per

curiam) (not designated for publication) (concerning trial court cause number CR-00-

145-ES1). This Court held that relator had not met his burden to show that the trial

court was asked to rule on relator’s motions for DNA testing, but failed or refused to do

so. See id. at *3.

        2
          Relator also filed a motion for leave to file the petition for writ of mandamus. Relator’s motion
for leave to file his petition for writ of mandamus is dismissed as moot. The Texas Rules of Appellate
Procedure no longer require the relator to file a motion for leave to file an original proceeding. See
generally TEX. R. APP. P. 52 & cmt.


                                                    2
       On February 16, 2011, relator filed another petition for writ of mandamus

complaining that the Honorable Marisela Saldana, former judge of the 148th District

Court of Nueces County, had failed to rule on relator’s recent motions for DNA testing.

See In re Olivarez, Nos. 13-11-00085-CR & 13-11-00086-CR, 2011 Tex. App. LEXIS

4370, at *2 (Tex. App.—Corpus Christi June 8, 2011, orig. proceeding) (per curiam) (not

designated for publication) (concerning trial court cause numbers CR-00-145-ES1 and

CR-00-146-ES1). In January 2011, former Judge Saldana was succeeded in office by

the Honorable Guy Williams. Id. Accordingly, on February 17, 2011, this Court abated

and remanded the petition for writ of mandamus in order for Judge Saldana’s

successor, the Honorable Guy Williams, to reconsider the matters at issue therein. See

TEX. R. APP. P. 7.2(b) (“If the case is an original proceeding under Rule 52, the court

must abate the proceeding to allow the successor to reconsider the original party’s

decision.”). On June 6, 2011, Judge Williams signed an “Order and Memorandum on

Defendant’s Motion for DNA Testing” denying relator’s request for DNA testing. See In

re Olivarez, 2011 Tex. App. LEXIS 4370, at **4–5. Judge Williams found that there

were no reasonable grounds for granting relator’s motion for DNA testing and concluded

that relator was not entitled to the appointment of an attorney to represent the relator for

the purposes of testing. Id. The State of Texas, acting by and through the District

Attorney of Nueces County, Texas, thereafter filed a response to the petition for writ of

mandamus contending that relator was not entitled to the relief sought. Id. at *3. This

Court dismissed relator’s petition for writ of mandamus as moot. See In re Olivarez,

2011 Tex. App. LEXIS 4370, at *5.




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       Relator subsequently appealed the trial court’s June 6, 2011 denial of his

motions for DNA testing and the appointment of counsel. See Olivarez v. State, Nos.

13-11-00483-CR & 13-11-00484-CR, 2012 Tex. App. LEXIS 8745, at *1 (Tex. App.—

Corpus Christi Oct. 18, 2012, no pet.) (mem. op., not designated for publication). This

Court affirmed the trial court’s rulings. See id.

       In this original proceeding, relator contends that the trial court has failed to rule

on his January 8, 2013, motion for appointment of counsel pursuant to Texas Code of

Criminal Procedure article 64.01 in both trial court cause numbers CR-00-145-ES1 and

CR-00-146-ES1. The petition for writ of mandamus includes copies of relator’s motion

requesting appointment of counsel, allegedly filed on or about January 8, 2013, but

which is neither dated nor file-stamped, and various letters from relator to the district

clerk, the trial court, and this Court regarding the foregoing events and causes of action.

                                  II. STANDARD OF REVIEW

       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 both of these requirements, then the petition for writ

of mandamus should be denied.        See id. Consideration of a request or motion that is

properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726

S.W.2d 125, 128 (Tex. Crim. App.1987) (orig. proceeding).

       To obtain mandamus relief for the trial court’s refusal to rule on a motion, a

relator must establish: (1) the motion was properly filed and has been pending for a



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reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court

refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig.

proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.

proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig.

proceeding). The relator must show that the trial court received, was aware of, and was

asked to rule on the motion.        In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—

Texarkana 2008, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—

Amarillo 2003, orig. proceeding).

      It is the relator’s burden to properly request and show entitlement to mandamus

relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re

Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see

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.”). In addition to other requirements, the

relator must include a statement of facts supported by citations to “competent evidence

included in the appendix or record,” and must also provide “a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must also file an

appendix and record sufficient to support the claim for mandamus relief. See id. R.

52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the

required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney,

254 S.W.3d at 661.




                                            5
                                      III. ANALYSIS

      A “convicted person” is entitled to counsel during a proceeding under Texas

Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing), if the

person informs the court that he wishes to submit a motion under Chapter 64, the court

finds reasonable grounds for a motion to be filed, and the court determines that the

person is indigent. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2011).

Under article 64.01(c) of the Texas Code of Criminal Procedure, 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 id. Because the appointment

of counsel under article 64.01(c) is not a ministerial act, mandamus will not lie to compel

the appointment of counsel. See In re Ludwig, 162 S.W.3d 454, 454–55 (Tex. App.—

Waco 2005, orig. proceeding). Furthermore, the denial of a motion for appointment of

counsel on 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 Texas Court of Criminal Appeals has recognized that “Chapter 64 does not

prohibit a second, or successive, motion for forensic DNA testing[.]” Ex parte Baker,

185 S.W.3d 894, 897 (Tex. Crim. App. 2006) (orig. proceeding).          The issue in that

original proceeding, however, was whether a statutory post-conviction writ of habeas

corpus was available for complaints of ineffective assistance of counsel on a Chapter 64

motion for DNA testing. See id. The court held it was not. Id. On the same day, the

court of criminal appeals further recognized in another original proceeding that “it is

conceivable that a convicted person who receives ineffective assistance of counsel in a



                                            6
DNA proceeding may be entitled to relief by way of a second DNA proceeding.” Ex

parte Suhre, 185 S.W.3d 898, 899 (Tex. Crim. App. 2006) (orig. proceeding).

       In contrast, this case does not concern allegations of ineffective assistance of

counsel on a Chapter 64 motion for DNA proceedings and thus Baker and Suhre do not

control our analysis. Further, as pointed out by our sister court, the statutory language

that the Texas Court of Criminal Appeals relied upon in Suhre to state that a successive

motion was not prohibited, thus obviating the need for habeas corpus review of an

allegation of ineffective assistance of counsel, has been removed by amendment of the

statute. See In re Birdwell, 393 S.W.3d at 898 n.2. Nevertheless, assuming without

deciding that the trial court has a duty to rule on successive motions for DNA testing

and the appointment of counsel, we conclude that the instant case does not present

such circumstances.

       Relator’s motion for DNA proceedings was fully adjudicated on the merits and

was followed by an appeal of the trial court’s denial of DNA testing and the appointment

of counsel. The record currently before the Court fails to establish that the motion for

appointment of counsel that relator allegedly filed in January is substantively different

from the previous motions for appointment of counsel that that were addressed by the

trial court and were the subject of direct appeal. Further, relator has neither argued nor

shown that this case presents extraordinary circumstances that would compel the trial

court’s consideration of a successive motion for appointment of counsel. We conclude

that relator has not shown that the trial court has abused its discretion in failing to rule

on the motion for DNA testing and the appointment of counsel. See In re Birdwell, 224

S.W.3d at 870 (“If the issue that is the subject of a requested ruling has not previously



                                             7
been fully adjudicated, the trial court may have a ministerial duty to rule on the motion.

Thus, no ruling is required in response to a subsequent filing of a motion for DNA

testing, if there has already been a full adjudication in connection with a prior motion for

DNA testing, absent exceptional circumstances.”); see also In re Sims, No. 05-13-

00049-CV, 2013 Tex. App. LEXIS 2777, at *1 (Tex. App.—Dallas Mar. 15, 2013, orig.

proceeding) (mem. op.) (“Relator is not entitled to a writ of mandamus requiring the trial

court to repeatedly rule on the same motion [for DNA testing].”); In re Durden, No. 14-

12-00143-CR, 2012 Tex. App. LEXIS 1412, at **4–5 (Tex. App.—Houston [14th Dist.]

Feb. 23, 2012, orig. proceeding) (mem. op., not designated for publication) (“No ruling is

required in response to a subsequent filing of a motion for DNA testing if there has

already been a full adjudication in connection with a prior motion for DNA testing,

absent exceptional circumstances.”).

                                     IV. CONCLUSION

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

mandamus, is of the opinion that relator has not established his entitlement to the relief

sought. Accordingly, the petition for writ of mandamus in these causes is DENIED. All

further and other relief sought herein is likewise DENIED.




       ______________________________
                                                        GINA M. BENAVIDES,
                                                        Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of September, 2013.



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