in Re Gregory Braziel

• Court: Court of Appeals of Texas
• Decided: June 11, 2009
• Docket: 14-09-00489-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed June 11, 2009

Petition for Writ of Mandamus Denied and Memorandum Opinion filed June 11, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00489-CR

IN RE GREGORY BRAZIEL, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On May 28, 2009, relator, Gregory Braziel, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator requests that we compel the Honorable Denise Collins, presiding judge of the 208th District Court of Harris County, to appoint counsel for him and to rule on his motion for DNA testing with regard to his underlying conviction for aggravated robbery.  See Braziel v. State, No. 14-05-00703-CR, 2006 WL 2506374 (Tex. App.CHouston [14th Dist.] Aug. 31, 2006, pet. ref=d) (mem. op.) (not designated for publication) (affirming relator=s conviction for aggravated robbery).

As an initial matter, relator=s petition does not comply with the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 52.3(j) (requiring person filing petition to certify that he has reviewed petition and that every factual statement is supported by competent evidence in record); Id. 52.7(a)(1) (requiring that relator must filed certified or sworn copy of every document that is material to his claim for relief).  Notwithstanding these deficiencies, relator can not prevail on his request for mandamus relief.

Relator requests that we compel the trial court (1) to appoint counsel for him and (2) to rule on his motion for DNA testing.  To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).  Consideration of a motion that is properly filed and before the court is a ministerial act.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding) (opinion on reh=g).  However, the trial court generally has no ministerial duty to rule a certain way on such motion.  State ex rel. Young, 236 S.W.3d at 210. 

Article 64.01 of the Texas Code of Criminal Procedure provides that a convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.  Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2008).  The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.  Id.  The convicting court shall appoint counsel if the person informs the court that (1) he wishes to submit a motion under this chapter, (2) the court finds reasonable grounds for a motion to be filed, and (3) the court determines that the person is indigent.  Id. art. 64.01(c). 

Under the 2001 version of article 64.01(c), the Texas Court of Criminal Appeals held that the appointment of counsel was mandatory if the trial court determined that the convicted person was indigent.  Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003) (orig. proceeding).^[1]  However, the Legislature amended article 64.01(c) in 2003.  In re Ludwig, 162 S.W.3d 454, 454 (Tex. App.CWaco 2005, orig. proceeding).  The convicting court is now required to appoint counsel only if it determines that the convicted person is indigent and finds reasonable grounds for a motion to be filed.  Id. at 454B55.  Even if the convicting court determines that a convicted person is indigent, the court is not required to appoint counsel if it finds there are no reasonable grounds for the motion to be filed.  Id. at 455.  Such a finding is reviewed for an abuse of discretion.  Id.  Therefore, the appointment of counsel is no longer a ministerial act.  Id.  Consequently, we cannot compel the trial court to appoint counsel for relator with respect to his motion for DNA testing. 

Relator also requests that we compel the trial court to rule on his motion for DNA testing.  As stated above, the trial court has a ministerial duty to rule on a motion that is presented for a ruling.  State ex rel. Curry, 726 S.W.2d at 128.  A relator must establish that the trial court (1) had a legal duty to rule on the motion (2) was asked to rule on the motion; and (3) failed to do so.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App.CWaco 2003, orig. proceeding). 

Relator has not demonstrated that he filed his motion with the trial court or that the court received, was aware of, or was asked to rule on the motion.  Relator has failed to present any correspondence or other documents from relator calling the court=s attention to his motion.  See In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.CAmarillo 2003, orig. proceeding).  Filing a document with the district clerk does not mean the trial court is aware of it; nor is the clerk=s knowledge imputed to the trial court.  In re Hearn, 137 S.W.3d 681, 685 (Tex. App.CSan Antonio 2004, orig. proceeding); In re Villarreal, 96 S.W.3d at710 n.2. 

Moreover, the trial court has a reasonable time in which to act.  Ex parte Bates, 65 S.W.3d 133, 134B35 (Tex. App.CAmarillo 2001, orig. proceeding).  Whether a reasonable time has lapsed depends on the circumstances of each case.  Id.  Relator states he filed his motion for DNA testing on April 20, 2009.  Just over a month had lapsed between the time relator filed his motion in the trial court and the time he filed his petition in this court.  We cannot say that a reasonable period of time has lapsed, particularly given that relator has not shown that the trial court was aware of, or asked to rule on, his motion.  Therefore, under these facts, relator has not shown that trial court had a ministerial duty to rule on his motion for DNA testing.

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

Do Not PublishCTex. R. App. P. 47.2(b).

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            ^[1]  See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2, 2B3 (amended 2003 & 2007) (current version at Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2008)).