Opinion
No. 09-10-00414-CV
Opinion Delivered December 9, 2010.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Stephen Mitchell Shank seeks mandamus relief to compel the trial court to appoint counsel for Shank on his motion for post-conviction DNA testing. We deny the petition.
We notified Shank that the form and contents of his petition must comply with the requirements of the Texas Rules of Appellate Procedure and provided thirty days to amend the petition. See Tex. R. App. P. 52.3. We also notified Shank that he must certify that he served a copy of the petition upon the respondent and the real party in interest. See Tex. R. App. P. 9.5(e); see also Tex. R. App. P. 52.2. We notified Shank that for a record to be prepared without payment he must file a request that identified each document or hearing with sufficient specificity to identify the item to be included in the record. Shank filed a declaration of indigence but failed to file an amended petition and certificate of service and failed to designate a record to be prepared for the mandamus proceeding.
The relator has not presented a mandamus record that shows that he is entitled to mandamus relief. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.-Houston [1st] 2006, orig. proceeding); see also Tex. R. App. P. 52.7. Shank also failed to demonstrate his compliance with Texas Rule of Appellate Procedure 9.5. See In re Lewis, No. 07-04-432 CV, 2004 WL 2074306, *1 (Tex. App.-Amarillo Sep. 17, 2004, orig. proceeding [mand. denied]); In re Hensler, 27 S.W.3d 719, 720 (Tex. App.-Waco 2000, orig. proceeding); Tex. R. App. P. 9.5. Furthermore, the denial of a motion for appointment of counsel on a motion for post-conviction DNA testing is not immediately appealable, but the issue may be raised on appeal from an order denying a motion for DNA testing. See Gutierrez v. State, 307 S.W.3d 318, 322-23 (Tex. Crim. App. 2010). If the trial court denied both his motion for post-conviction DNA testing and his motion for counsel, Shank's remedy would be by appeal and not through an original mandamus proceeding. See In re Layton, No. 07-10-00330-CV, 2010 WL 3503529, *1 (Tex. App.-Amarillo Sep. 8, 2010, orig. proceeding).
The relator has not shown that he is entitled to mandamus relief from this Court.
Accordingly, the petition for writ of mandamus is denied without prejudice.
PETITION DENIED.