TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00106-CV

In re Rickey Lynn Heaton, Jr.

ORIGINAL PROCEEDING FROM BURNET COUNTY

MEMORANDUM OPINION

Rickey Lynn Heaton, Jr. has filed a petition for writ of mandamus requesting that this Court order the Burnet County District Court to act on his Motion Requesting Out of Time Appeal and Appointment of Appellant Counsel. We will deny the writ because Heaton is not entitled to the relief he requests from the trial court under the facts he has described in his petition. Depending on the circumstances, the relief Heaton requests may possibly be available through a petition for writ of habeas corpus, but Heaton does not assert that he has a pending habeas petition. The trial court has not abused its discretion by not granting the relief requested through the apparently stand-alone motion described in Heaton’s petition for writ of mandamus. Accordingly, the petition for writ of mandamus is denied.

G. Alan Waldrop, Justice Before Justices Patterson, Puryear and Waldrop Filed: March 31, 2009