Case Information

*1 IN RE SMITH CAUSE NO. DEED 743-005, DEEFFY 1905 V 16-15-22, PEDERED IN BILLYFON BRANSON UN THE 102nd JUERicial CAUST OF EsWILIS COUNTS TEXAS DESALIE COUNTS TEXAS

WART OF MANDAMUS

Petitioner LEE VERT SMITH, ("Petitioner") makes this COUT to grant this WART OF MANDAMUS, for the reason that there is substantial Controversy as material. Desperate, which will entitle petitioner to relief as a matter. But DEC 1.5.2015

JURISDETION

Petitioner seeks MANDAMUS relief in this pursant to article TEXAS Government Code Sec. 22.221 b1. This MANDAMUS is within this Court's Jurisdiction. Petitioner filed this Motion for DNA testing pursuant to Article 6401 (c) on may 19, 2010. See Exhibit A, which trial court had a duty to rule on the Motion within 90 days, which has expired as of this date, and trial Court has not ruled on said motion. Under 6401, failure of the Court to act within the Allowed 90 days shall Constitute a forwarding of petitioners Motion for DNA testing. The ruling on this Motion is a procedural matter that shall be done by the Court.

IN petitioners case which has been before Bowie County Court for (5) years now, there is no other adequate remedy available for petitioner and ruling on said motion is an act to mandate as ministerial.

*2 To obtain mandamus relief in a Criminal matter, a realtor must meet a two-part test, first, realtor must show he has no other adequate remedy to seek redress for the alleged error by the trial Court. Board of farcion and paroles V. Court of Appeals, 910 S.W. 2d 481,483 (Tex. Crim. App. 1995), which realtor has no other remedies in this case for his motion for DNA testing to be heard by the Court of Criminal Appeals or Federal Courts because the state Court is holding petitioner Motion for DNA testing and has not made a ruling; Second, the act realtor seeks to Compel' must be ministerial in nature.

Under article 64.01, it is ministerial for the Court to role on the motion to the Court of Appeals can Consider petitioner's Appeal. "Quoting State Ex. Tel. Hlbig V. Medemeld, 877 S.W. 2d 469" Moreover, a theoretically discretionary act may nonetheless become ministerial in application if the Acts and Circumstances of a given case lead to but one rational Course of action.

See Eruxton V. Dunn, BO3 S.W. 2d 318, 320. The Court of Criminal Appeals also recognizes a "clear right to the relief sought" as being the functional equivalent of a ministerial act Homes V. Third Court of Appeals NO 74744 N. 439 op at 5, 1994 WL 435476, Tex. Crim. App. Apric 20, 1994; Whitsitt V. Renssly, 719 S.W. 2d 333.

*3 The realtor submits his spirit of Mandamus first to the Court of Appeals Uator Padilla Kme Daniel 122 S.W. 3d 805, 803 (Tex. Cm. App 2003). Due to the Court of Appeals and the Court of Criminal Appeals both have Concurrent Jurisdiction in This oripina Mandamus proceeding. The realtor properly filed his initial motion for EMA testing pursuant to Article 64001 (a) ON MMy 12, 2010 SEE EINISET A. The trial Court Judge of the 102nd District Court in Eoune County Texes has held the realtor Motion in excess of (3) years with no disposition in the case. This is a gross violation of Due process under the 18th Amendment of the U.S. Constitution see white V. Reiter 640 S.W. 2d 586, 594, 596 (Tex. Cm. m App 1982) (fundamental requirement of due process Mandate an opportunity to be heard). The realtor seeks relief under in Re. Christensen 39 S.W. 3d 250 (Tex. App Amarrillo 2000) Citig. Crel. V. District Ameren of Mecha County 318 S.W. 2d 45, 46 (Tex. 1991) (A district Court may be Compelled via Mandamus to Consider and rethe on a pending motion presented to the court). The realtor Seeks the Court of Apleals to order the Judge of Lord District Court of Eone County to perform his ministerial duty and rule on the Realtors Motion for Dula testing.

*4

2

Disgese

Deliramer as that this Coart of appends siver for Dair Testing thot is betore the Coart.

Respectivily Sdmitted See $\int$ see $\int$ and

*5

UNSWORN DECLARATION

1, LEE VERT Smith, tdcJ number 1504044

Being presently incarcerated in the $\angle 444\mathrm{U}\mathrm{G}\mathrm{H}$ , Unit of the Texas Department of Criminal Justice, in $$ , County, Texas

Declare under penalty of perjury that I am the applicant in the above and foregoing Motion. I have read said motion and the factual allegations of the same are true and Correct.

Executed on this $$ , day of $$ , $20\mathrm{L}\mathrm{S}$ .

, Movant, Pro Se

*6 The State of Texas

To the Honorable Judge of said Court: Comes now defendant. LEE K. Smith TDGY No. 1504044 , and requests appointment of Counsel to assist Defendant in obtaining an order for DNA testing from the Court pursuant to Article 64.01(6), Code of Criminal Procedure. Defendant wishes to submit a motion pursuant to Chapter 64 requesting DNA testing and Defendant is. Indigent, An affidant of indigeney is attached and incorporated hereto as Exhibit ${}^2{I}^{1/2}$

Respectfully Submitted, Lee U. Smith NAME Petitioner, Pro Se TDCT-ID* Texas Department of Cournal Justice - Institutional Division John U. MILACE Unit 1675 S. FAN 3525 Cebrado Cistoy, Texas 72512

*7

The State of Texas

ORDER APPOINTING ATTORNEY

Come on this day for Consideration, the Defendants request for appuntment of counsel to assist him in obtaining DNA testing pursuant to Article 64.01(6) Code of CRIMINAL PROCEDURE. THE COURT has reviewed the request and addidavt of indigency in this matter and it is hereby ORDERED that an attomey should be appointed to represent Defendent pursuant to Article 64.01(6), CCP. Accordingly, the following attorney is hereby appointed and instructed to contact his/her client regarding this matter:

It is further ordered that a copy of this Order shall be sent to the Defendant by the Clerk of this Court

JUdeE PresiDING

*8 Inmate UnSugon Decubation

I, Lee W. Smith, TDEY* 1504044 being presently incarcerated in the Texas Department of General Justice Justitutional Division at the '80' John Wallace Unit in Mitchell County, Texas At 1675 S. Fm 3525, Colorado City, Texas 79512. Do thereby before under penalty of perjury that the foregoing motion requesting appointment of Counsel Account Tck. Code of CEm. Proc. Act 64. The order and a Declaration of Inability to pay cost 13 true and correct according to my knowledge.

Leachate of Service I, Lee K. Smith, TDEY* 1504044, being presently incarcerated in the Texas Department of General Justice Justitutional Division at the '80' John Wallace Unit in Mitchell County, Texas At 1675 S. Fm 3525, Colorado City, Texas 79512. Do hereby certify that a Tave and Correct Copy of the foregoing motion requesting appointment of Counsel Account Tck. Code. of CEm. Proc. Act 64. The order and a Declaration of Inability to pay cost were forwarded to the Beuse County Texas District Clerk Billy for Because at 710 James Beuse DE, P.O. DCX 248, in NEW Boston, Texas 75570-0248.

Submitted on the 12th Day of 1718 V. 2010

Leachate of Service LEE V. Smith