NUMBER 13-11-00575-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE EDWARD CANO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion Per Curiam

Edward Cantu (“relator”) is a pro se inmate serving a 20-year prison sentence for 

sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2003). Relator is 

seeking to pursue a motion for forensic DNA testing under Chapter 64 of the Texas 

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art 64.01, et seq. (West 

Supp. 2010). Relator has filed a petition for appointment of counsel and a supporting 

affidavit in cause number CR-056-08-G in the convicting court, the 370th district court of 

Hidalgo County, Texas, the Honorable Noe Gonzalez (“respondent”) presiding. See
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TEX. CODE CRIM. PROC. ANN. art 64.01(c) (West Supp. 2010). Alleging that respondent 

has not yet ruled on his petition for appointment of counsel, relator has filed a petition 

for writ of mandamus, asking this Court to direct respondent to set a hearing date for 

relator’s petition for appointment of counsel. For the reasons set forth below, we deny 

the petition for writ of mandamus.

I. LEGAL STANDARD

To be entitled to mandamus relief, relator must establish both that he has no 

adequate remedy at law to redress his alleged harm and that what he seeks to compel 

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young 

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. 

App. 2007). If relator fails to meet these requirements, then the petition for writ of 

mandamus should be denied. See id. It is relator’s burden to properly request and 

show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. 

App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of 

mandamus must show himself entitled to the extraordinary relief he seeks.”).

II. ANALYSIS

In the case at bar, relator seeks to compel respondent to hold a hearing on his 

petition for appointment of counsel; however, there is nothing in Chapter 64 that 

requires the trial court to hold a hearing on a motion for appointment of counsel. Under 

article 64.01(c), an indigent person seeking DNA testing is entitled to appointed counsel 

only if the trial court finds reasonable grounds for a testing motion to be filed. See TEX.

CODE CRIM. PROC. ANN. art. 64.01(c). Because the appointment of counsel under article 

64.01(c) is not a ministerial act, mandamus will not lie to correct errors in the refusal to 
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appoint counsel or to hold a hearing on a request for appointment of counsel. See In re 

Ludwig, 162 S.W.3d 454, 454-55 (Tex. App.—Waco 2005, orig. proceeding) (citing 

Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (appellate court reviews 

for abuse of discretion a trial court’s finding concerning reasonable grounds in 

determining whether to grant a hearing on motion for new trial)).

Furthermore, the denial of a motion for appointment of counsel in a proceeding 

involving 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) (“The better 

course is for a convicted person to file a motion for DNA testing and, if and when the 

motion is denied, appeal any alleged error made by the trial judge in refusing to appoint 

counsel. If a reviewing court determines that the trial judge erred in failing to appoint 

counsel, then the case will be remanded to the trial court so the convicted person can 

file a subsequent motion for DNA testing with the assistance of counsel.”). Thus, the 

denial of a request for appointment of counsel in a Chapter 64 proceeding is not subject 

to appeal unless the relator files a pro se motion for post-conviction DNA testing and the 

trial court denies the motion in an appealable order. See In re Weisinger, No. 12-10-

00447-CR, 2011 Tex. App. LEXIS 523, *2 (Tex. App.—Tyler Jan. 26, 2011, orig. 

proceeding) (mem. op.); In re Layton, No. 07-10-00330-CV, 2010 Tex. App. LEXIS 

7418, *3 (Tex. App.—Amarillo Sept. 8, 2010, orig. proceeding) (mem. op.). Under such 

circumstances, relator’s remedy would be by appeal and not through an original 

mandamus proceeding. In re Shank, No. 09-10-00414-CV, 2010 Tex. App. LEXIS 

9718, *2 (Tex. App.—Beaumont Dec. 9, 2010, orig. proceeding) (mem. op.).
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III. CONCLUSION

The Court, having examined and fully considered the petition for writ of 

mandamus is of the opinion that the petition should be denied. Accordingly, because 

relator has failed to demonstrate that he is entitled to extraordinary relief, the petition for 

writ of mandamus is denied.

PER CURIAM

Do not Publish. 

TEX. R. APP. P. 47.2(b)

Delivered and filed the 

12th day of October, 2011.