in Re Cheyenne Pate

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00381-CR

IN RE CHEYENNE PATE

Original Proceeding

MEMORANDUM OPINION

Cheyenne Pate seeks a writ of mandamus compelling Respondent, the

Honorable Patrick H. Simmons of the 77th District Court of Limestone County, to

appoint counsel and reconsider his motion for DNA testing.1

Mandamus relief may be granted if the relator can demonstrate that (1) the act

sought to be compelled is purely ministerial and (2) the relator has no other adequate

legal remedy. In re Ludwig, 162 S.W.3d 454, 454 (Tex. App.—Waco 2005, orig.

proceeding) (citing Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003)).

1 Pate’s application is defective because: (1) his certification does not comply with Rule of Appellate Procedure 52.3(j); (2) his proof of service does not comply with Rule of Appellate Procedure 9.5; and (3) he failed to include the required record pursuant to Rules of Appellate Procedure 52.3 and 52.7. See TEX. R. APP. P. 9.5; see also TEX. R. APP. P. 52.3(k)(1); TEX. R. APP. P. 52.7. Nevertheless, we will apply Rule of Appellate Procedure 2 and disregard these deficiencies. See TEX. R. APP. P. 2. A “convicting court is required to appoint counsel only if it determines that the

convicted person is indigent and finds reasonable grounds for a motion to be filed.”

Ludwig, 162 S.W.3d at 454-55 (citing TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (Vernon

Supp. 2009)). “[E]ven if the convicting court determines that a convicted person is

indigent, the court would not be required to appoint counsel if it found there were no

reasonable grounds for the motion to be filed--a finding we would review for an abuse

of discretion.” Id. at 455. Appointment of counsel is not a purely ministerial act. See id.

Thus, Pate cannot satisfy the first requirement for mandamus relief. Id.; see In re Scott,

No. 06-08-00096-CV, 2008 Tex. App. LEXIS 7075, at *2-5 (Tex. App.—Texarkana Sept. 24,

2008, orig. proceeding) (mem. op.). We, therefore, deny Pate’s petition for writ of

mandamus.

FELIPE REYNA Justice Before Chief Justice Gray Justice Reyna, and Justice Davis Writ denied Opinion delivered and filed December 30, 2009 [OT06]

In re Pate Page 2