in Re Walter Hinton Junior

Opinion

Petition for Writ of Mandamus Dismissed and Memorandum Majority and Dissenting Opinions filed November 1, 2022.

In The

Fourteenth Court of Appeals

NO. 14-22-00543-CR

IN RE WALTER HINTON JUNIOR, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

262nd District Court Harris County, Texas

Trial Court Cause No. 1316867

MEMORANDUM DISSENTING OPINION

I respectfully dissent. Relator’s petition for writ of mandamus should be denied.

To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516, S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding).

Chapter 64 of the Code of Criminal Procedure provides for postconviction DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01–.05. Article 64.01 of the 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. Id. art. 64.01(a)-1.

The convicting court must appoint counsel only if it determines that the convicting person is indigent and the court finds reasonable grounds for a motion to be filed. See In re Marshall, 577 S.W.3d 581, 583 (Tex. App.—Houston [14th Dist.] Feb. 2019, orig. proceeding) (explaining 2003 legislative amendments to article 64.01(c)). 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. In re Ludwig, 162 S.W.3d 454, 455 (Tex. App.—Waco 2005, orig. proceeding). Such a finding is reviewed under an abuse-of-discretion standard, either in mandamus or as part of the appeal of the denial of DNA testing. Marshall, 577 S.W.3d at 583, citing, Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010) (appeal) and Ludwig, 162 S.W.3d at 455 (mandamus). Therefore, the appointment of counsel under chapter 64 involves a discretionary decision and is not a purely ministerial act. Marshall, 577 S.W.3d at 583. Because relator seeks to compel a discretionary act, appellant is not entitled to mandamus relief.

/s/ Margaret “Meg” Poissant Justice

Panel Consists of Justices Zimmerer, Spain, and Poissant. (Spain, J., majority).

Do Not Publish — Tex. R. App. P. 47.2(b).