                                   NO. 07-08-0432-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                  NOVEMBER 24, 2008

                          ______________________________


                        IN RE JOSEPH H. NORTON, RELATOR

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Relator, Joseph H. Norton, seeks a writ of mandamus to compel the Honorable Ron

Enns, Judge of the 69th District Court, to respond to motions pending in his court regarding

DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. Relator has

also filed a Motion to Proceed in Forma Pauperis in which he additionally requests

appointment of new counsel. We grant in part and deny in part the motion to proceed in

forma pauperis. Furthermore, for reasons expressed herein, we deny Relator’s petition for

writ of mandamus.
                          Motion to Proceed In Forma Pauperis


       Although the motion lacks details required by Rule 20.1(b) of the Texas Rules of

Appellate Procedure, we nevertheless find the motion “adequate to fulfill the fundamental

purpose of Rule 20.1" and grant the motion to the extent that Relator may proceed in this

Court without payment of fees. See Higgins v. Randall County Sheriff’s Office, 257 S.W.3d

684, 688 (Tex. 2008). See also Higgins v. Randall County Sheriff’s Office, 193 S.W.3d

898, 900 (Tex. 2006).


                           Request for Appointment of Counsel


       The limited record before us indicates that Relator was appointed counsel to pursue

his motion for DNA testing and nothing suggests that counsel has been permitted to

withdraw. Even assuming that Relator is not presently represented by counsel, although

the question of whether and whom to appoint as substitute counsel is a matter we normally

abate back to the trial court for consideration, in light of our disposition of Relator’s petition

for writ of mandamus and in the interest of judicial economy, we deny that portion of the

motion requesting appointment of new counsel.


                                  Procedural Background


       According to Relator’s petition for writ of mandamus and items included in the

appendix thereto, he was convicted in 1993 for murder. On February 11, 2005, the trial

court signed an order granting his motion for DNA testing. By letter dated May 8, 2007,

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Judge Enns notified Relator that the special prosecutor and appointed counsel had agreed

on a basic format for conducting the DNA test. He further wrote, “I WILL defer ruling on

your pending motions until I hear from your counsel.” A copy of a letter dated January 9,

2008, from Relator to Judge Enns is included in the appendix to the petition for writ of

mandamus. In that letter, Relator conveys his frustration about the delay in DNA testing

granted by court order in 2005 and requests Judge Enns to appoint him new counsel.

Finally, he urges Judge Enns to “at least take the appropriate time & effort to see that the

aforementioned DNA Testing be finally carried out as expeditiously & professionally as

possible . . . .” Relator does not discuss any pending motions, only four or five letters and

documentation to Judge Enns reflecting his frustration and the fact that his correspondence

has not been acknowledged.


                            Mandamus Standard of Review


       “Mandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to

mandamus relief, a relator must (1) show that he has no adequate remedy at law to

redress the alleged harm and (2) the act sought to be compelled is ministerial and does

not involve a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist.

Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007). Additionally, a relator must


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satisfy three requirements: (1) a legal duty to perform; (2) a demand for performance; and

(3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).


       When a motion is properly pending before a trial court, the act of considering and

ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.

1992). However, the trial court has a reasonable time within which to perform that

ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San

Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is

dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426

(Tex.App.–Houston [1st Dist.] 1992, orig. proceeding).


       Additionally, the party seeking relief has the burden to provide a sufficient record to

establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. The record must

show that the motion was presented to the trial court and that it refused to act. See

generally In re Villareal, 96 S.W.3d 708, 710 n.2 (Tex.App.–Amarillo 2003, orig.

proceeding) (filing something with the trial court clerk does not demonstrate that a motion

was presented to the trial court).      See also In re Chavez, 62 S.W.3d 225, 228

(Tex.App.–Amarillo 2001, orig. proceeding).


                                        Discussion


       Notwithstanding Judge Enn’s letter to Relator that he will “defer ruling” on pending

motions and Relator’s prayer that we compel the trial court “to respond to his motions


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currently before it, and or to put into motion the warrant necessary to move [relator] to its

jurisdiction for testing,” the record before us does not contain certified or sworn copies of

any motions pending before Judge Enns. See Tex. R. App. P. 52.3(j)(1)(A). The record

does contain copies of “Defendant’s Motion for DNA Testing” and “Defendant’s Amended

Motion for DNA Testing,” which the trial court granted in 2005. Appendix item J is a copy

of Relator’s “Request for Appointment of Counsel Persuant [sic] to Article 64.01(c) Code

of Criminal Procedure.” A date of “3-31-08" is noted beside Relator’s signature. The

document, however, is not file-stamped by the trial court clerk.


       Except for a reference in Judge Enn’s May 8, 2007 letter to Relator providing that

he will defer ruling on pending motions, Relator has not satisfied his burden to provide a

sufficient record demonstrating that properly filed motions were presented to the trial court

and have awaited disposition for an unreasonable length of time. Neither has Relator

demonstrated that the trial court has abused its discretion or violated a duty imposed by

law.


       Consequently, Relator’s petition for writ of mandamus is denied.




                                                  Patrick A. Pirtle
                                                      Justice




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