In Re Birdwell

224 S.W.3d 864, 2007 Tex. App. LEXIS 4143, 2007 WL 1517715

• Court: Court of Appeals of Texas
• Decided: May 23, 2007
• Docket: 10-06-00385-CR
• Status: Published

Opinions

OPINION ON REHEARING

BILL VANCE, Justice.

Vaughn Birdwell, who was sentenced to life in prison after being convicted of first degree murder, filed a motion for DNA testing on July 12, 2006, in the 54th District Court of McLennan County. He suggests that testing of a knife and swab samples from a rape kit will show that he did not attack, rape, or cause the death of the victim.

When the trial court did not rule on his motion, he filed this original proceeding asking us to order the Honorable George Allen, Judge of the 54th District Court to rule. No record was filed with the petition, and we denied it. In re Birdwell, No. 10-06-00385-CR, 2006 Tex.App. LEXIS 10544, 2006 WL 3591119 (Tex.App.-Waco December 6, 2006, orig. proceeding) (not designated for publication).

Birdwell then filed a “notice of appeal,” which we docketed as No. 10-07-00020-CR and dismissed. On further review, we concluded that the notice of appeal was in the nature of a motion for rehearing. See Ex parte Birdwell, No. 10-06-00385-CR, 2007 Tex.App. LEXIS 2348, 2007 WL 900634 (Tex.App.-Waco, March 21, 2007, order) (also filed as a Memorandum Opinion in No. 10-07-00020-CR).¹ We ordered the Clerk to file it as a motion for rehearing in this cause on the date it was received, December 18, 2006. We also ordered that all documents filed in Cause No. 10-07-00020-CR be transferred to this cause, and rehearing was granted. See id.

Duty to Rule

Birdwell asks us require the trial court to rule. The State argues that there is no ministerial duty to rule on a motion that has been denied twice. The record in this proceeding compels us to disagree with the State.

An act is ministerial if it constitutes a duty clearly fixed and required by law. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App.1987). A ministerial act is one which is accomplished without the exercise of discretion or judgment. Id. Deciding how to rule is not a ministerial act. Id. Although we may compel a court to consider a motion, we do not require that the judge rule in a certain way. Id. A trial court has a ministerial duty to timely rule on a motion requesting relief. See, e.g., In re Salazar, 134 S.W.3d 357, 358 (Tex.App.-Waco 2003, orig. proceeding).

Petition for Writ of Mandamus

The Court of Criminal Appeals says 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). Based on the record before us, we are unable to determine whether the trial court ever required a response from the State to Birdwell’s motion, as mandated by Chapter 64. Consequently, we cannot determine whether there is biological material subject to DNA testing or whether the statute has been complied with.

As the State points out, on January 1, 2007, Judge Allen was replaced by the Honorable Matt Johnson as Judge of the 54th District Court. Because this proceeding has been pending since before that date, Judge Johnson has not had a reasonable opportunity to consider Birdwell’s motion. Accordingly, Birdwell’s petition for writ of mandamus is denied without prejudice to Birdwell’s right to seek mandamus relief in the event Judge Johnson does not comply with Chapter 64 of the Texas Code of Criminal Procedure and timely rule on Birdwell’s motion for DNA testing.

1 . The order recites the extensive history of Birdwell's attempts to obtain DNA testing.