in Re: Michael Vincent Moore

NO. 12-22-00175-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: §
MICHAEL VINCENT MOORE, § ORIGINAL PROCEEDING
RELATOR §

MEMORANDUM OPINION
PER CURIAM
Michael Vincent Moore, acting pro se, seeks a writ of mandamus compelling Respondent
to transmit his motion for appointment of counsel pursuant to Chapter 64 of the code of criminal
procedure, which addresses motions for forensic DNA testing, to this Court.1
Relator was convicted of capital murder and sentenced to life imprisonment. This Court
affirmed his conviction in 2016. See Moore v. State, No. 12-15-00137-CR, 2016 WL 1730747
(Tex. App.—Tyler Apr. 29, 2016, pet. ref’d) (mem. op., not designated for publication). On
April 12, 2017, the Texas Court of Criminal Appeals denied Relator’s request for habeas relief
without a written order. See Ex parte Moore, WR-86,382-01 (Tex. Crim. App. Apr. 12, 2017).
According to Relator, he filed a second motion for appointment of counsel pursuant to Chapter
64 of the code of criminal procedure on December 18, 2020 and never received a response. 2 He
complains that he has yet to receive a response and asks that we order Respondent to transmit his
motion to this Court.
However, it is the convicting court that is tasked with appointing counsel for purposes of
Chapter 64. See TEX. CRIM. PROC. ANN. art. 64.01(c) (West 2018) (“convicting court shall

1
Respondent is the Honorable Chris B. Martin, Judge of the 294th District Court in Van Zandt County,
Texas. The State of Texas is the Real Party in Interest.
2
Counsel was previously appointed to represent Relator in filing a Chapter 64 writ, but Relator contends
that counsel abandoned that representation.
appoint counsel for the convicted person if the person informs the court that the person wishes to
submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed,
and the court determines that the person is indigent”). And to the extent Relator’s petition can be
construed as a complaint that Respondent has not ruled on his motion, even if the convicting
court determines that a convicted person is indigent, the court is not required to appoint counsel
if it finds there were no reasonable grounds for the motion to be filed—a finding that an
appellate court would review for abuse of discretion. In re Ludwig, 162 S.W.3d 454, 455 (Tex.
App.—Waco 2005, orig. proceeding). Thus, the appointment of counsel under Chapter 64
involves a discretionary decision and is not a purely ministerial act. Id.; see also In re Gilmer,
No. 12-20-00063-CR, 2020 WL 975365, at *1 (Tex. App.—Tyler Feb. 28, 2020, orig.
proceeding) (mem. op., not designated for publication) (per curiam); In re Weisinger, No. 12-13-
00205-CR, 2014 WL 5390660, at *4 (Tex. App.—Tyler Oct. 22, 2014, orig. proceeding) (mem.
op., not designated for publication).
Because the act Relator seeks to compel is not ministerial, he is not entitled to mandamus
relief. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007) (orig. proceeding); see also Gilmer, 2020 WL 975365, at *1-2 (denying
mandamus petition that sought order directing trial court to rule on motion for appointment of
counsel pursuant to Chapter 64); Weisinger, 2014 WL 5390660, at *4 (denying mandamus
petition that sought order directing trial court to appoint counsel to assist in preparing motion for
forensic DNA testing); Ludwig, 162 S.W.3d at 455 (denying mandamus petition that requested
order compelling trial court to appoint attorney to represent him in Chapter 64 proceeding). We
deny the petition for writ of mandamus.
Opinion delivered July 29, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

JULY 29, 2022

NO. 12-22-00175-CR

MICHAEL VINCENT MOORE,
Relator
V.

HON. CHRIS B. MARTIN,
Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by
Michael Vincent Moore; who is the relator in appellate cause number 12-22-00175-CR and the
defendant in trial court cause number CR13-00337(A), formerly pending on the docket of the
294th Judicial District Court of Van Zandt County, Texas. Said petition for writ of mandamus
having been filed herein on June 24, 2022, and the same having been duly considered, because it
is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

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