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Click here for the full text of this decision FACTS:Marco Antonio Rodriguez received a conviction for murder on Oct. 6, 1999, and also received a sentence of life imprisonment. The 13th Court of Appeals affirmed his conviction, overruling a self-defense issue in which Rodriguez argued that the trial court erred in not admitting evidence of an extraneous offense allegedly committed by the victim to support Rodriguez’s claim that the victim was the first aggressor. The 13th Court based its conclusion on Rodriguez’ failure to adduce evidence that the victim was the first aggressor or acted aggressively. Based on this, Rodriguez lacked the entitlement to offer evidence of extraneous acts of violence by the victim. In this mandamus proceeding, Rodriguez again contended that the victim was the first aggressor and that Rodriguez could have proven it with the DNA test results from blood found on a towel and inside his car door. After his conviction was affirmed, Rodriguez filed a pro se application for post-conviction forensic DNA testing. On Jan. 18, 2002, the trial court denied his application. Rodriguez then filed a petition for writ of mandamus, which the 13th Court conditionally granted on May 21, 2002. The 13th Court directed the trial court to vacate its order, appoint counsel and reconsider Rodriguez’ motion for DNA testing. On March 28, 2005, the trial court did so. The state appealed the trial court’s order granting DNA testing. However, because Rodriguez filed his motion before the effective date of Texas Code of Criminal Procedure Art. 44.01(a)(6), the court concluded that the state was not authorized to appeal the order in question. Thus, the 13th Court concluded that it lacked jurisdiction to review the state’s appeal of that order. The state then filed its petition for writ of mandamus requesting that the 13th Court vacate the trial court’s order of March 28, 2005, that granted Rodriguez’ motion for post-conviction DNA testing. HOLDING:The 13th Court conditionally granted the state’s petition for writ of mandamus. The state argued that Rodriguez’ application did not satisfy the requirement under Texas Code of Criminal Procedure Art. 64.03(a)(1)(B) that a convicting court may order DNA testing only if the court finds that identity was or is an issue in the case. The state asserted that because identity was never at issue in this case, the trial court had a ministerial duty to deny Rodriguez’s application for DNA testing. The 13th Court agreed. The court found no dispute to either Rodriguez’ identity or the victim’s identity. The issue, the court stated, is not who committed the crime, but rather why Rodriguez caused the victim’s death. It is clear, the court stated, that the issue raised in Rodriguez’s request for post-conviction DNA testing is whether the findings of any DNA testing will assist Rodriguez with his claim of self defense. Those concerns are not identity concerns. Because identity is not an issue in this case, there is no room for the exercise of discretion, the court stated. Thus, the court held that the trial court had a ministerial, nondiscretionary duty to deny Rodriguez’s request for post-conviction DNA testing. OPINION:Rodriguez, J.; Rodriguez, Garza and Benavides, J.J.

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