in Re William Ervin Mitchell

• Court: Court of Appeals of Texas
• Decided: July 25, 2013
• Docket: 14-13-00565-CR
• Status: Published

Opinion

Order filed July 25, 2013.

In The

Fourteenth Court of Appeals ____________

NO. 14-13-00565-CR ____________

IN RE WILLIAM ERVIN MITCHELL, Relator

ORIGINAL PROCEEDING PETITION FOR WRIT OF MANDAMUS 182nd District Court Harris County, Texas Trial Court Cause No. 709814

ORDER

Relator, a pro se inmate,1 filed a petition for writ of mandamus, asking that this court compel the trial court, the Honorable Jeannine Barr, presiding judge of the 182nd District Court, to rule on his motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure.

1 This court affirmed appellant’s conviction for burglary of a habitation with the intent to commit aggravated assault. See Mitchell v. State, 14-96-01116-CR, 1998 WL 78122 (Tex. App.— Houston [14th Dist.] Feb. 26, 1998, no pet.) (not designated for publication). Relator asserts in his petition that counsel was appointed to represent him on his DNA motion and that testing was performed in May of 2009. To date, relator has not been notified that the trial court filed findings of fact after the testing. Relator provided copies of correspondence and documents with his petition. These documents reflect that in April of this year, relator’s appointed counsel, Bob Wicoff, informed relator that after testing in 2009, findings were prepared but never presented to the court for signature.

With his petition, relator provided a copy of Proposed Findings of Fact, which include a finding that “the Defendant fails to show that it is reasonably probable that the Defendant would not have been convicted for burglary of a habitation in cause number 709814 if the DNA test results obtained by TDPS-CL had been available before or during the trial in cause number 709814.” In addition, “The Court finds, based on the TDPS-CL DNA report, that the DNA testing ordered pursuant to Chapter 64 did not produce results which were favorable to the Defendant.”

Counsel stated in his letter to relator that the State would present the Proposed Findings to the court for signature. This court has been unable to confirm whether Findings have been signed. Accordingly, we issue the following order:

We ORDER the Harris County District Attorney’s Office to file a response to relator’s petition for writ of mandamus, a copy of which is attached to this order, on or before August 19, 2013.

PER CURIAM

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