IN RE: ROBERT LEE SMITH (2010)

MEMORANDUM OPINION

By petition for writ of mandamus, relator, Robert Lee Smith, pro se, requests that this Court order respondent to rule on post-conviction motions for DNA testing filed in trial court cause numbers 961276 and 966324.3We deny the petitions.

In its response to relator's petitions, the State advises that respondent has granted relator's motions for post-conviction DNA testing.   Attached to the State's response are copies of the trial court's orders granting appellant's requests for DNA testing.2

There are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely:  (1) the lower court must have a legal duty to perform a nondiscretionary act;  (2) the relator must make a demand for performance;  and (3) the subject court must refuse that request.  Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding).   Relator has not provided this Court with a record that shows that he made a request of respondent to perform a nondiscretionary act that respondent refused.

Accordingly, we deny the petitions for writ of mandamus.

PER CURIAM