in Re Romarcus Deon Marshall

Petition for Writ of Mandamus Denied and Opinion filed February 26, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00131-CR
IN RE ROMARCUS DEON MARSHALL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
179th District Court
Harris County, Texas
Trial Court Cause No. 833880
OPINION
On February 14, 2019, relator Romarcus Deon Marshall filed a petition for
writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex.
R. App. P. 52. In the petition, relator asks this court to compel the Honorable Randy
Roll, presiding judge of the 179th District Court of Harris County, either (1) to grant
his motion to appoint counsel to represent relator on a motion for DNA testing or (2)
to otherwise rule on his motion.
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.
Under the 2001 version of article 64.01(c), the Court of Criminal Appeals held
that the appointment of counsel to represent a convicted person in connection with
a motion for postconviction DNA testing was mandatory if the trial court determined
that the convicted person was indigent. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex.
Crim. App. 2003) (orig. proceeding); see also Act of Apr. 3, 2001, 77th Leg., R.S.,
ch. 2, § 2, art. 64.01(c), 2001 Tex. Gen. Laws 2, 3 (“A convicted person is entitled
to counsel during a proceeding under this chapter. If a convicted person informs
the convicting court that the person wishes to submit a motion under this chapter
and if the court determines that the person is indigent, the court shall appoint
counsel for the person.”). Relator relies on opinions interpreting the 2001 version
of article 64.01(c). See In re Cash, 99 S.W.3d 286, 288 (Tex. App.—Texarkana
2003, orig. proceeding); Clark v. State, 84 S.W.3d 313, 314 (Tex. App.—Beaumont
2002, pet. ref’d).
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However, the Legislature amended article 64.01(c) in 2003. See Act of Apr.
28, 2003, 78th Leg., R.S., ch. 13, § 1, art. 64.04(c), 2003 Tex. Gen. Laws 16, 16 (“A
convicted person is entitled to counsel during a proceeding under this chapter.
The convicting court shall appoint counsel for the convicted person if the person
informs the court that the person wishes to submit a motion under this chapter,
the court finds reasonable grounds for a motion to be filed, and the court
determines that the person is indigent.”); In re Ludwig, 162 S.W.3d 454, 454 (Tex.
App.—Waco 2005, orig. proceeding). Under the current version of article 64.01(c),
the convicting court is now required to appoint counsel only if it determines that the
convicted person is indigent and finds reasonable grounds for a motion to be filed.
Ludwig, 162 S.W.3d at 454–55. 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. Id. at 455. Such a finding
is reviewed under an abuse-of-discretion standard, either in a mandamus or as part
of the appeal of the denial of DNA testing. Gutiererz v. State, 307 S.W.3d 318, 323
(Tex. Crim. App. 2010) (appeal); Ludwig, 162 S.W.3d at 455 (mandamus).
Therefore, the appointment of counsel is no longer a ministerial act. Ludwig, 162
S.W.3d at 455.
Consequently, we cannot compel the appointment of counsel for relator with
respect to his motion for DNA testing. In addition. relator has not made a substantive
legal argument in his petition for a writ of mandamus for his alternative request,
which is to order Judge Roll to rule on relator’s motion to appoint counsel. Relator
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has failed to establish that he is entitled to mandamus relief. Accordingly, we deny
relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Wise, Zimmerer, and Spain.
Publish — Tex. R. App. P. 47.2(b).
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