Opinion issued April 13, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00269-CR

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IN RE JOSEPH H. STEWART, III, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINIONRelator, Joseph H. Stewart, III, has filed a petition for writ of mandamus complaining that respondent has not provided him with an appointed attorney to assist him in the preparation of a request for DNA testing. We deny relief.

          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 us with a record that shows that he made any request of the respondent to perform a nondiscretionary act that respondent has refused.

          The petition for writ of mandamus is therefore denied.

          It is so ORDERED.

PER CURIAM

Panel consists of Chief Justice Radack, and Justices Jennings and Alcala.