in Re William Ervin Mitchell ( 2013 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 10, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00565-CR
IN RE WILLIAM ERVIN MITCHELL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
182nd District Court
Harris County, Texas
Trial Court Cause No. 709814
MEMORANDUM OPINION
Relator William Ervin Mitchell, an inmate confined in the Institutional
Division of the Texas Department of Criminal Justice, filed a pro se petition for
writ of mandamus in this court.1 See Tex. Gov’t Code § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable Jeannine
Barr, presiding judge of the 182nd District Court of Harris County, to rule on his
This court affirmed appellant’s conviction for burglary of a habitation with the intent to
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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).
motion for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code
of Criminal Procedure.
Relator asserts that counsel was appointed to represent him on his DNA
motion and that testing was performed in May of 2009. Relator asserts that to date,
he has not been notified that the trial court made findings of fact after the testing,
as required by statute. See Tex. Code Crim. Proc. art. 64.04.
Included with relator’s petition is a copy of a letter from his appointed
counsel informing relator that after testing in 2009, findings were prepared but
never presented to the court for signature. Counsel included a copy of unsigned
Proposed Findings of Fact, which include the following findings:
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
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.
Mandamus relief in a criminal case may be granted if the relator shows the
following: (1) the act sought to be compelled is purely ministerial and (2) there is
no adequate remedy at law. DeLeon v. District Clerk, 187 S.W.3d 473, 474 (Tex.
Crim. App. 2006).
A trial court has a ministerial duty to make findings after DNA testing, as
required by article 64.04. In re Jackson, 238 S.W.3d 603, 604 (Tex. App.—Waco
2007, orig. proceeding). A mandamus petitioner establishes that the trial court
abused its discretion by failing to perform a ministerial act if the petitioner shows
that the court had a legal duty to perform and was asked to perform that duty, but
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failed or refused to do so. See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San
Antonio 2002, orig. proceeding).
Relator has not established that the trial court has failed or refused to make
findings when requested to do so. Relator has not included with his petition a
request to the trial court to act on his DNA test results. Relator’s appointed counsel
informed relator that findings were never presented to the trial court for signature.
Therefore, relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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