in Re Walter Hinton Junior ( 2022 )

Petition for Writ of Mandamus Dismissed and Memorandum Majority and
Dissenting Opinions filed November 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00543-CR
IN RE WALTER HINTON JUNIOR, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
262nd District Court
Harris County, Texas
Trial Court Cause No. 1316867
MEMORANDUM DISSENTING OPINION
I respectfully dissent. Relator’s petition for writ of mandamus should be
denied.
To be entitled to mandamus relief, a relator must show (1) that the relator
has no adequate remedy at law for obtaining the relief the relator seeks; and (2)
what the relator seeks to compel involves a ministerial act rather than a
discretionary act. In re Powell, 516, S.W.3d 488, 494–95 (Tex. Crim. App. 2017)
(orig. proceeding).
Chapter 64 of the Code of Criminal Procedure provides for postconviction
DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01–.05. Article 64.01 of the
Code of Criminal Procedure provides that a convicted person may submit to the
convicting court a motion for forensic DNA testing of evidence containing
biological material. Id. art. 64.01(a)-1.
The convicting court must appoint counsel only if it determines that the
convicting person is indigent and the court finds reasonable grounds for a motion
to be filed. See In re Marshall, 577 S.W.3d 581, 583 (Tex. App.—Houston [14th
Dist.] Feb. 2019, orig. proceeding) (explaining 2003 legislative amendments to
article 64.01(c)). Even if the convicting court determines that a convicted person is
indigent, the court is not required to appoint counsel if it finds there are no
reasonable grounds for the motion to be filed. In re Ludwig, 162 S.W.3d 454, 455
(Tex. App.—Waco 2005, orig. proceeding). Such a finding is reviewed under an
abuse-of-discretion standard, either in mandamus or as part of the appeal of the
denial of DNA testing. Marshall, 577 S.W.3d at 583, citing, Gutierrez v. State, 307
S.W.3d 318, 323 (Tex. Crim. App. 2010) (appeal) and Ludwig, 162 S.W.3d at 455(mandamus). Therefore, the appointment of counsel under chapter 64 involves a
discretionary decision and is not a purely ministerial act. Marshall, 577 S.W.3d at
583. Because relator seeks to compel a discretionary act, appellant is not entitled to
mandamus relief.
/s/ Margaret “Meg” Poissant
Justice
Panel Consists of Justices Zimmerer, Spain, and Poissant. (Spain, J., majority).
Do Not Publish — Tex. R. App. P. 47.2(b).
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