                                    NO. 07-05-0357-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   OCTOBER 24, 2005

                          ______________________________

                       IN RE ROBERT UNDERWOOD, RELATOR
                        _________________________________


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


                                MEMORANDUM OPINION


       In this original proceeding relator Robert Underwood seeks a writ of mandamus

directing the Honorable Ed Self, Judge of the 242nd District Court to “comply with” Chapter

64 of the Code of Criminal Procedure authorizing post-conviction DNA testing. We deny

the petition.


       Chapter 64 of the Code of Criminal Procedure authorizes a convicted person to

seek forensic DNA testing by filing a motion and supporting affidavit in the convicting court.

Tex. Code Crim. Proc. Ann. art. 64.01 - .05 (Vernon Supp. 2005). The motion may request

testing of evidence in possession of the State during trial of the offense that was not tested

or, if previously tested, there is a reasonable likelihood testing with newer techniques would

be more accurate and probative than the prior test. Art. 64.01(b). Under subdivision (c)

a movant is entitled to assistance of counsel if the movant requests appointment of
counsel, the trial court finds reasonable grounds for a motion and it determines the person

is indigent. Art. 64.01(c).


       Relator’s petition is the only document before this court. It does not state the

offense of which he was convicted or when that conviction occurred, nor has he attached

copies of any documents filed in the trial court as required by Rule of Appellate Procedure

52.3(j). The petition does not contain a prayer clearly stating what relief relator seeks. See

Tex. R. App. P. 52.3(i). We construe it as seeking a writ directing the trial court to appoint

counsel to represent relator in presenting a motion for DNA testing.


       A writ of 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 at law. Canadian

Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). It is the

relator's burden to show entitlement to the relief being requested. See generally Johnson

v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding ). In Stoner

v. Massey, 586 S.W.2d 843 (Tex. 1979), our Supreme Court articulated three elements

necessary to show entitlement to a writ of mandamus: first, a legal duty to perform a

nondiscretionary act; second, a demand for performance; and third, refusal of that

demand. Id. at 846. Relator’s petition fails to establish those elements and must be

denied.


       Relator has failed to meet his burden to show the trial court had a duty to perform

a nondiscretionary act. A convicted person’s entitlement to appointment of counsel in a

proceeding under Chapter 64 is conditioned on findings by the trial court there are


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reasonable grounds to file the motion and the person is indigent. Art. 64.01(c). Relator

has failed to provide a copy of the request for appointment of counsel he filed in the trial

court. Consequently, we cannot determine whether he presented any basis on which the

trial court could find there were reasonable grounds for the motion. His petition does not

allege he established reasonable grounds for the motion to the trial court, or even the

existence of evidence subject to testing. Similarly, relator’s petition does not show he

provided the trial court with a basis to determine he is indigent. There is no indication

relator filed an affidavit of indigence in the trial court. These omissions require denial of

relator’s petition. 586 S.W.2d at 846.


       Moreover, relator has not established a demand for performance. Presenting the

court with a demand for performance provides the trial court an opportunity to rule on the

motion. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston [14th Dist.] 1992) (orig.

proceeding). In Barnes, the relator sought a writ of mandamus directing the trial court to

rule on his motions. Id. at 425. While agreeing the trial court had a duty to rule within a

reasonable time, the court noted:


       The relator has not provided us with a record that shows that, after he filed
       his motions, relator asked the trial court for a hearing and ruling on his
       motions and the trial court refused to hold a hearing and to rule. From this
       record, it appears the relator did not take any action to alert the trial court
       that it had not yet considered his two motions.


Id. at 426. Based on this failure, the court denied the petition. Id. Compare Safety-Kleen

Corp. v. Garcia, 945 S.W.2d 268 (Tex.App.–San Antonio 1997) (orig. proceeding) (relator

had made repeated written requests to court coordinator to schedule hearings on its


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motion). This omission also requires denial of relator’s petition. Barnes, 832 S.W.2d at

426. Finally, without a demand for performance, relator cannot show refusal of that

demand by the trial court.   For these reasons we deny relator’s petition for writ of

mandamus.




                                        James T. Campbell
                                            Justice




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