NO. 07-11-0157-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 15, 2011

______________________________

IN RE JOHANSON LEE WATSON, RELATOR

_________________________________

ORIGINAL PROCEEDING ARISING FROM PROCEEDINGS

BEFORE THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NOS. 9479 & 9480; HONORABLE DAN MIKE BIRD, JUDGE PRESIDING1

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

By this original proceeding, Relator, Johanson Lee Watson, an inmate 

proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the 

Honorable Juanita Pavlick,

2

to hold a hearing and make findings regarding the results of 

a serology/DNA report pursuant to article 64.04 of the Texas Code of Criminal 

Procedure. For the reasons expressed herein, we deny the requested relief.

 

1

Judge Bird was the District Attorney for Wilbarger County when Relator was charged with the offenses 

alleged in Cause Nos. 9479 and 9480 and he voluntarily recused himself from proceedings related to 

those cause numbers. 

2

Sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005).
2

Background

In 1997, Relator was indicted for sexual assault of a child in cause number 9479

and for burglary of a habitation in cause number 9480. The charges were enhanced 

with a prior burglary from 1987. In exchange for dismissal of the burglary of a habitation 

charge, Relator pleaded guilty to the sexual assault charge and was sentenced to 

twenty years confinement. No direct appeal from that conviction was filed. 

In 2006, Relator pursued DNA testing and relief was denied by the trial court. He 

appealed to this Court. After this Court twice abated the appeals to determine issues of 

indigence and appointment of counsel,3 Relator and the State entered into an 

agreement for voluntarily dismissal of the appeals in exchange for DNA testing. An 

order granting forensic DNA testing was entered on March 15, 2007, and the appeals 

were dismissed on March 29, 2007. See Watson v. State, Nos. 07-06-0414-CR and 07-

06-0415-CR, 2007 Tex. App. LEXIS 2515 (Tex.App.--Amarillo March 29, 2007, no pet). 

A Nunc Pro Tunc Order for Forensic DNA Testing was signed on September 7, 2007. 

The Texas Department of Public Safety conducted DNA testing on vaginal swabs

of the victim to compare the known DNA of the Relator to that of the perpetrator of the 

sexual assault. On January 7, 2008, the Department generated a Serology/DNA report 

in which it concluded that "Watson cannot be excluded as a contributor to this profile."

 

3Watson v. State, Nos. 07-06-0414-CR, 07-06-0415-CR, 2007 Tex. App. LEXIS 811 (Tex.App.--Amarillo 

Feb. 2, 2007, no pet.), and Watson v. State, Nos. 07-06-0414-CR, 07-06-0415-CR, 2007 Tex. App. 

LEXIS 10002 (Tex.App.--Amarillo Nov. 16, 2006, no pet.).
3

On June 30, 2010, and again on July 30, 2010, Relator filed motions in the trial 

court requesting a hearing under article 64.04 of the Texas Code of Criminal Procedure 

which provides:

[a]fter examining the results of testing under Article 64.03, the convicting 

court shall hold a hearing and make a finding as to whether, had the 

results been available during the trial of the offense, it is reasonably 

probable that the person would not have been convicted.

(Emphasis added). When no hearing was held, Relator filed a Petition for Mandamus in 

this Court requesting relief. This Court requested a response to the petition from 

Respondent. No response was filed; however, the trial court did schedule a hearing to 

address Relator's motions.

On June 10, 2011, a hearing was held. Appellant and his appointed counsel 

were present. After a brief hearing, the trial court ruled, "I do not find that had the DNA 

results been available it is reasonably probable that [Relator] would not have been 

convicted." The ruling was memorialized in a document entitled "Findings on Motion for 

DNA Testing" and filed with the trial court clerk on June 21, 2011.

Mandamus Standard of Review

Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone 

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only 

to correct a clear abuse of discretion or the violation of a duty imposed by law when 

there is no other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839 
4

(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 

916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a 

relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for 

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 

1979).

Discussion

Relator now has a ruling on the two motions that were pending in the trial court. 

Any dissatisfaction with the ruling is not the proper subject of a mandamus proceeding 

but may be remedied by ordinary appeal. See In re Washington, No. 09-07-00246-CV, 

2007 Tex. App. LEXIS 6449, at *2 (Tex.App.--Beaumont Aug. 16, 2007, orig. 

proceeding). Consequently, his request for relief is rendered moot and the petition for 

writ of mandamus is denied.

Patrick A. Pirtle

 Justice