in Re Sylvester Majors

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00701-CV
In re Sylvester Majors
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Sylvester Majors is serving the prison sentence imposed following his conviction
for aggravated robbery. In September 2005, he filed his pro se “Defendant Motion Requesting
Forensic DNA Testing” in the 299th Judicial District Court. See Tex. Code Crim. Proc. Ann. art.
64.01 (West Supp. 2006). On October 18, 2006, after the State filed its response in opposition to
the motion, the district court signed and filed a written order purporting to overrule “Applicant’s
Motion for Appointment of Counsel to file motion for DNA testing.”
Majors perfected an appeal to this Court urging that his motion for DNA testing was
erroneously denied. We dismissed the appeal with a memorandum opinion explaining that “[t]he
record before us does not reflect any ruling by the district court on [Majors’s] motion requesting
forensic DNA testing. Without a ruling in the record, there is nothing before us for review with
respect to appellant’s motion requesting forensic DNA testing.” In re Majors, No. 03-06-00091-CR
(Tex. App.—Austin Aug. 9, 2006, no pet.) (not designated for publication).
In November 2006, Majors filed this petition for a writ of mandamus. In his petition,
he complains that the district court has not ruled on his motion for DNA testing and asks the Court
to order the district court to act on the motion. Consideration of a motion properly filed and before
the court is ministerial. State ex rel Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987).
On January 30, 2007, the district court acted on Major’s motion for DNA testing. On
that date, the court signed a nunc pro tunc order purporting to correct the clerical error in the court’s
October 18, 2006, and overruling Majors’s motion for DNA testing. Majors may timely appeal
from the January 30 order. See Homan v. Hughes, 708 S.W.2d 449, 452 (Tex. Crim. App. 1986);
Ex parte Curry, 712 S.W.2d 878, 880 Tex. App.—Austin 1986, no pet.).
Because the relief sought has been otherwise granted, the petition for writ
of mandamus is dismissed.
___________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: March 14, 2007
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