in Re Lionel Newman v. State ( 2009 )

Petitions for Writ of Mandamus Dismissed and Memorandum Opinion Filed February 10, 2009

Petitions for Writ of Mandamus Dismissed and Memorandum Opinion Filed February 10, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00937-CR

NO. 14-09-00024-CR

IN RE LIONEL NEWMAN

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On October 8, 2008, relator, Lionel Newman, filed a petition for writ of mandamus in this Court.  See Tex. Gov=t Code Ann '22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.  In his petition, relator requests that we compel the court reporter of the 230th District Court of Harris County to prepare and file the record in relator=s appeal of the trial court=s denial of his motion for post-conviction DNA testing. 

On June 6, 2008, the trial court held a hearing on, and denied, relator=s motion for post-conviction DNA testing.  On June 23, 2008, relator filed his appeal from the denial of his motion, and the appeal is pending in this Court in cause number 14-08-00773-CR.  The reporter=s record was originally due on August 11, 2008.  On October 31, 2008, the court reporter informed this Court that no court reporter was present at the hearing and, therefore, there is no reporter=s record to be filed in relator=s appeal from the denial of his motion for DNA testing.  However, included in the appendix to relator=s petition for writ of mandamus is a letter from the attorney who represented relator on the motion for DNA testing, stating that Aa transcript of the hearing was made.@ 

On November 13, 2008, we ordered the trial court to determine if the hearing on relator=s motion for DNA testing had been recorded and, if it was recorded, we further directed that the reporter=s record be filed in this Court by December 15, 2008.  After the reporter=s record had not been filed, we sent a dilatory letter to the trial court on January 6, 2009.  On January 15, 2009, the court reporter filed the record from the June 6, 2008 hearing on relator=s motion for DNA testing.  Because the reporter=s record has been filed, relator=s requested relief is moot. 

On January 8, 2009, relator filed a second petition for writ of mandamus, in which relator contends the respondent, the Honorable Belinda Hill, presiding judge of the 230th District Court of Harris County, has Afailed or refused@ to comply with our November 13, 2008 order directing her to determine if the hearing on his motion for DNA testing was recorded, and asserts the only remedy is to reverse the order denying his motion for DNA testing and remand for a new trial.  The reporter=s record was filed on January 15, 2009; therefore, the trial court has resolved the issue regarding whether the hearing on relator=s motion for DNA testing was recorded.  Relator=s complaint is moot.

Accordingly, both of relator=s pending petitions for writ of mandamus are ordered dismissed.

PER CURIAM

Panel consists of Justices Yates, Seymore, and Boyce. 

Do not publish.