Opinion
No. 10-06-00400-CR
Opinion delivered and filed September 12, 2007. DO NOT PUBLISH.
Original Proceeding.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice Vance dissents with a note)
("I would grant the petition in part, requiring the trial court to rule on the motion for DNA testing, and deny the request for a specific ruling. See In re Birdwell, 224 S.W.3d 864 (Tex.App.-Waco 2007, orig. proceeding).")
MEMORANDUM OPINION
Robert Whitfield filed an "application" for writ of mandamus with this Court requesting relief from the trial court's failure to grant Whitfield's motion for DNA testing. Numerous motions for DNA testing have been filed by Whitfield. We denied the application on April 25, 2007 but withdrew the opinion and judgment. Whitfield has given the court a different date for the previously filed and unresolved motion for DNA testing, April 28, 2003, and attached a file stamped copy of that motion to his motion to reconsider filed with this Court on June 18, 2007. The trial court has been diligent in attempting to resolve the motion for DNA testing and rendered an order distributing funds to Whitfield's counsel to pay for an investigator. The investigator's report has been filed, and it appears that some biological material was located at the Southwestern Institute of Forensic Sciences. On August 1, 2007, we requested a response from the State to Whitfield's application for writ of mandamus which was filed in this Court on December 11, 2006. The State only responded that Whitfield is not entitled to a writ. An act is ministerial if it constitutes a duty clearly fixed and required by law. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App. 1987). A ministerial act is one which is accomplished without the exercise of discretion or judgment. Id. Deciding how to rule is not a ministerial act. Id. (emphasis added). Although we may compel a court to consider a motion, we do not require that the judge rule in a certain way. Id. Because Whitfield asks us to direct the trial court to grant his motion for DNA testing, an action we cannot do, his application for writ of mandamus is denied. Writ denied.