In Re Williams

Court of Appeals of Texas

In Re Williams

160 S.W.3d 83, 2004 Tex. App. LEXIS 4849, 2004 WL 1178470

CourtCourt of Appeals of Texas

DecidedMay 26, 2004

Docket10-03-00402-CR

StatusPublished

Cited by2 cases

This text of 160 S.W.3d 83 (In Re Williams) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Williams, 160 S.W.3d 83, 2004 Tex. App. LEXIS 4849, 2004 WL 1178470 (Tex. Ct. App. 2004).

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MEMORANDUM OPINION

PER CURIAM.

Milton Louis Williams seeks a writ of mandamus compelling Respondent, the Honorable Robert Stem, Judge of the 82nd District Court of Robertson County, to appoint counsel and to grant his motion for post-conviction DNA testing filed under Chapter 64 of the Code of Criminal Procedure.

To prevail in a mandamus proceeding, the petitioner must establish that: (1) the act sought to be compelled is purely ministerial; and (2) he has no adequate remedy at law. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App.2003) (orig.proceeding). Respondent has appointed counsel for Petitioner. The Legislature has provided for an appeal from the denial of a motion for DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex.Code Crim. PROC. Ann. art. 64.05 (Vernon Supp.2004)). However, the pendency of this original proceeding has delayed the commencement of an appeal by Petitioner.

To ensure that Petitioner’s appellate remedy is an adequate legal remedy, we reset the appellate timetable such that Petitioner’s notice of appeal is due within thirty (30) days after the date of this opinion, and if notice of appeal is filed, the record shall be due within ninety (90) days after the date of this opinion. See Whitehead v. State, 130 S.W.3d 866, 880 (Tex.Crim.App., 2004).

Because Petitioner has an adequate remedy at law, the petition is denied. See Rosenthal, 98 S.W.3d at 198 n. 3.

Chief Justice GRAY concurring and dissenting.

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MEMORANDUM OPINION

PER CURIAM.

Milton Louis Williams seeks a writ of mandamus compelling Respondent, the Honorable Robert Stem, Judge of the 82nd District Court of Robertson County, to appoint counsel and to grant his motion for post-conviction DNA testing filed under Chapter 64 of the Code of Criminal Procedure.

To prevail in a mandamus proceeding, the petitioner must establish that: (1) the act sought to be compelled is purely ministerial; and (2) he has no adequate remedy at law. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App.2003) (orig.proceeding). Respondent has appointed counsel for Petitioner. The Legislature has provided for an appeal from the denial of a motion for DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex.Code Crim. PROC. Ann. art. 64.05 (Vernon Supp.2004)). However, the pendency of this original proceeding has delayed the commencement of an appeal by Petitioner.

To ensure that Petitioner’s appellate remedy is an adequate legal remedy, we reset the appellate timetable such that Petitioner’s notice of appeal is due within thirty (30) days after the date of this opinion, and if notice of appeal is filed, the record shall be due within ninety (90) days after the date of this opinion. See Whitehead v. State, 130 S.W.3d 866, 880 (Tex.Crim.App., 2004).

Because Petitioner has an adequate remedy at law, the petition is denied. See Rosenthal, 98 S.W.3d at 198 n. 3.

Chief Justice GRAY concurring and dissenting.

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160 S.W.3d 83, 2004 Tex. App. LEXIS 4849, 2004 WL 1178470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-williams-texapp-2004.

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