in Re Jeffery Allen Whitfield ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00582-CV
In re Jeffery Allen Whitfield
ORIGINAL PROCEEDING FROM BELL COUNTY
MEMORANDUM OPINION
Relator Jeffery Allen Whitfield has filed a petition for writ of mandamus asking
this Court to compel the respondent trial court to rule on his pending motion for the appointment
of counsel to assist him in filing a post-conviction motion for DNA testing. See Tex. Code Crim.
Proc. art. 64.01(c).
Mandamus relief will issue to compel the performance of a ministerial act or duty.
State ex. rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007). A trial court has a ministerial duty to consider and rule on a properly
filed motion within a reasonable time. In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio
2002, orig. proceeding). This includes rulings on motions for DNA testing and the appointment
of counsel for the purpose of pursuing DNA testing under Chapter 64 of the Texas Code of
Criminal Procedure. In re Cash, 99 S.W.3d 286, 288 (Tex. App.—Texarkana 2003, orig.
proceeding); see In re Aekins, No. 03-15-00004-CV, 2015 Tex. App. LEXIS 2258, at *2 (Tex.
App.—Austin Mar. 11, 2015, orig. proceeding) (mem. op.). To obtain mandamus relief for the
trial court’s failure to rule on a motion, a relator must establish that: (1) the motion was properly
filed and has been pending for a reasonable amount of time, (2) the relator requested a ruling
on the motion, and (3) the trial court has failed or refused to rule on the motion. In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). In addition, the relator
must show that the trial court received, was aware of, and was asked to rule on the motion. Id.;
In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding).
The record establishes that on May 21, 2019, Whitfield filed the motion for
appointment of counsel that is the subject of this original proceeding.1 On August 9, 2019,
the court coordinator for the 27th District Court of Bell County sent a letter to Whitfield
informing him that the trial court had received his letter “requesting a ruling on [his] Motion for
Request for Appointment of Counsel” and that “the Court has no jurisdiction or authority to
grant your request.”
On January 6, 2020, the trial court filed with the Clerk of this Court a written
response to Whitfield’s petition for mandamus relief. In its response, the trial court explains that
it declined to rule on Whitfield’s motion for appointment of counsel “because [Whitfield] had
filed no new motion for DNA testing and the court had previously found that identity was not in
issue.” To the extent that the trial court suggests that Whitfield’s motion for appointment of
counsel was not properly filed because it was not accompanied by a motion for DNA testing, we
disagree that Chapter 64 has such a filing requirement. In fact, the apparent purpose of having
counsel appointed is to assist the convicted person in the preparation and filing of his or her
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Whitfield also filed a motion for appointment of counsel in June 2018. Whitfield later filed a
petition for writ to mandamus requesting that this Court compel the trial court to rule on that
motion, which we denied on the ground that the motion had not been pending for an unreasonable
length of time. See In re Whitfield, No. 03-18-00564-CV, 2018 Tex. App. LEXIS 6979, at *1
(Tex. App.—Austin Aug. 29, 2018, orig. proceeding) (mem. op.). Nothing in the record, or in
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motion for DNA testing. See Tex. Code Crim. Proc. art. 64.01(c) (providing that “convicted
person” is entitled to counsel in chapter 64 proceeding if, among other requirements, “the person
informs the court that the person wishes to submit a motion [under chapter 64]”).
The State, the real party in interest, has also filed a written response to Whitfield’s
petition in this Court. In its response, the State points out that Whitfield, representing himself
pro se, filed a motion for DNA testing in November 2017 and again in February 2018, and that
both motions for DNA testing were denied by the trial court before Whitfield filed his motion for
appointment of counsel. The State contends that the trial court’s rulings on Whitfield’s pro se
motions for DNA testing relieved the trial court of its duty to rule on his subsequently filed
motion for appointment of counsel. See In re Birdwell, 393 S.W.3d 886, 893 (Tex. App.—Waco
2012, orig. proceeding) (explaining that “there comes a point at which a trial court does not abuse
its discretion by simply refusing to rule on every motion a litigant may file”); see also In re
Flores, No. 05-15-00634-CV, 2015 Tex. App. LEXIS 5608, at *1 (Tex. App.—Dallas June 3,
2015, orig. proceeding) (mem. op.) (“[T]rial court has no ministerial duty to rule repeatedly on
substantively identical motions seeking the same relief.”). Assuming without deciding that under
certain circumstances, a trial court does not have a duty to rule on successive Chapter 64 motions,
but see Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006) (“Chapter 64 does not
prohibit a second, or successive, motion for forensic DNA testing . . . .”), because a motion for
DNA testing and a motion for appointment of counsel are not substantively the same, and because
no motion for appointment of counsel has ever been fully adjudicated on the merits in this
the written responses filed by the State and the trial court in this proceeding, suggests that the
trial court has ever ruled on Whitfield’s 2018 motion for appointment of counsel.
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case, we disagree with the State’s assertion that the trial court did not have a duty to rule on
Whitfield’s pending motion for appointment of counsel.
The record before us establishes that the trial court is aware of Whitfield’s motion
for appointment of counsel but has failed to rule on that motion, despite Whitfield’s request that
it do so, and that the motion has been pending for a reasonable time, more than nine months. We
conditionally grant the petition for writ of mandamus and instruct the trial court to rule on
Whitfield’s motion for appointment of counsel.2 The writ will issue only if the trial court fails to
comply with this opinion within thirty days.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Filed: April 22, 2020
2
We express no opinion on how the trial court should rule on the merits of Whitfield’s motion
for appointment of counsel and instead conclude only that it has a duty to rule on the motion. See
In re Birdwell, 393 S.W.3d 886, 893 (Tex. App.—Waco 2012, orig. proceeding) (“An appellate
court can only compel a trial court to rule on a pending motion by a writ of mandamus; it cannot
compel the trial court to rule in a certain way.”).
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