in Re Lawrence G. Quinton ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00362-CR
No. 10-15-00363-CR
IN RE LAWRENCE G. QUINTON
Original Proceeding
MEMORANDUM OPINION
The trial court denied Relator’s pro se motion for DNA testing and for
appointment of counsel in each case below. Relator seeks a writ of mandamus directing
the trial court to appoint counsel and to order DNA testing, and ordering the State to
produce the alleged biological evidence to be tested.1
1
The application (petition) for writ of mandamus lacks proof of service on the State and on the trial court.
A copy of all documents presented to the Court must be served on all parties (i.e., the trial court judge and
the State through the district attorney in this proceeding) and must contain proof of service. TEX. R. APP.
P. 9.5, 52.2. The petition also lacks key contents required by Rule 52. Id. 52.3, 52.7. It does not include the
certification required by Rule of Appellate Procedure 52.3(j). Id. 52.3(j). It lacks a sworn record, and the
unsworn record/appendix omits the underlying motion for DNA testing and for appointment of counsel.
Id. 52.3(k), 52.7. To expedite this matter, we invoke Rule of Appellate Procedure 2 to suspend these
requirements. Id. 2.
“Mandamus relief may be granted if the relator can demonstrate that (1) the act
sought to be compelled is purely ministerial and (2) the relator has no other adequate
legal remedy.” In re Ludwig, 162 S.W.3d 454, 455 (Tex. App.—Waco 2005, orig.
proceeding) (citing Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003) (orig.
proceeding)). Because a trial court’s decision to grant a motion for DNA testing or a
motion to appoint counsel is discretionary, not purely ministerial, mandamus relief is not
proper. See id. at 454-55; TEX. CODE CRIM. PROC. ANN. arts. 64.01(c), 64.03(a) (West Supp.
2014). Also, because the denial of a motion for DNA testing and the denial of a motion
for appointment of counsel are appealable, Relator has an adequate legal remedy by
appeal. See Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010) (holding that
denial of article 64.01(c) motion for appointment of counsel is appealable issue, but not
immediately appealable in interlocutory appeal); TEX. CODE CRIM. PROC. ANN. arts. 64.05 (West
Supp. 2014); cf. Neveu, 162 S.W.3d at 642-43. Accordingly, we deny the petitions for writ
of mandamus.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurs in the result without opinion)
Petitions denied
Opinion delivered and filed December 10, 2015
Do not publish
[OT06]
In re Quinton Page 2