                                   NO. 07-09-0006-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                   JANUARY 16, 2009

                          ______________________________


                          IN RE BARRY DWAYNE MINNFEE,

                                                      Relator
                        _________________________________

                Opinion on Original Proceeding for Writ of Mandamus
                      _________________________________


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

       Pending before the court is the petition from Barry Dwayne Minnfee requesting that

we issue a writ of mandamus against the Honorable Don Emerson, district judge of the

320th Judicial District. This is one of many which he has filed to date. Furthermore, the

petition deals with his purported motion to secure DNA testing and the appointment of legal

counsel to represent him in that matter as well as others. The petition is not verified; nor

does it contain a prisoner’s statement indicating that the factual allegations contained

therein are accurate. Nor is a copy of the alleged motion for DNA testing attached to or

included with the petition. Similarly missing is any explanation as to 1) why he believes

himself entitled to such testing under article 64 of the Texas Code of Criminal Procedure

or 2) why our ordering the trial judge to undertake that which he requests would not be
tantamount to ordering the trial court to engage in frivolous acts and the needless waste

of limited judicial resources.

       Additionally, Minnfee asks us to order the trial court to determine that he is an

indigent entitled to appointed counsel. Yet, that we cannot do for we cannot tell a trial

judge how to rule on motions pending before them before the trial judge himself rules on

them. See O'Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.–Tyler 1993, orig.

proceeding).

       Consequently, the petition for writ of mandamus is denied.



                                               Per Curiam




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