in Re Carl Long
This text of in Re Carl Long (in Re Carl Long) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-06-00239-CV
In re Carl Long
Original Proceeding
ORDER
On this day, the Court considered Relator Carl Long’s “Application” (Petition) for Mandamus. The suit below is a proposed civil action by Long against Elaine and Jorja Stout, the Real-Parties-in-Interest. Long makes the serious allegation that Respondent, the Honorable John H. Jackson, Judge of the 13th District Court, has ordered the District Clerk not to “accept” Long’s suit against the Stouts for filing. Long alleges that he is being deprived of his constitutional right of access to the courts (see Tex. Const. art. I, § 13) and that he has no adequate remedy by appeal.
The district clerk has a ministerial duty to accept and file all pleadings presented for filing. In re Bernard, 993 S.W.2d 453, 454 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (O’Connor, J., concurring); see also DeLeon v. District Clerk, 187 S.W.3d 473, 474 (Tex. Crim. App. 2006) (orig. proceeding). But, a court of appeals has no jurisdiction to issue a writ of mandamus against a district clerk. See Tex. Gov’t Code Ann. § 22.221(b) (Vernon 2004); In re Bernard, 993 S.W.2d at 454. The district court has the power to issue writs to enforce its jurisdiction. See Tex. Gov’t Code Ann. § 24.011 (Vernon 2004); In re Bernard, 993 S.W.2d at 454 (O’Connor, J., concurring) (“When a district clerk refuses to accept a pleading presented for filing, the party presenting the document may seek relief by filing an application for writ of mandamus in the district court.”).
A court of appeals may issue writs of mandamus against a judge of a district or county court in the court of appeals district or a judge of a district court who is acting as a magistrate at a court of inquiry. Tex. Gov’t Code Ann. § 22.221(b) (Vernon 2004). In this proceeding, Long alleges that it is the trial court who is “ordering” the district clerk not to file his suit. See In re Bernard, 993 S.W.2d at 454 (O’Connor, J., concurring) (“When a district clerk refuses to accept a pleading for filing, the party should attempt to file the pleading directly with the district judge, explaining in a verified motion that the clerk refused to accept the pleading for filing. Tex. R. Civ. P. 74. Should the district judge refuse to accept the pleading for filing, this Court would have jurisdiction under our mandamus power to direct the district judge to file the pleading.”).
When a district clerk refuses to file a lawsuit, we have no jurisdiction because there is no appealable order, and the litigant thus has no adequate remedy by appeal. See Long v. Phillips, No. 10-04-109-CV, 2004 WL 1574625 (Tex. App.—Waco July 7, 2004, no pet.); Simpson v. Sehorn, No. 10-03-215-CV, 2003 WL 23121314 (Tex. App.—Waco Dec. 31, 2003, no pet.).
The Court requests a response to Long’s application (petition) from Respondent. See Tex. R. App. P. 52.4. The response shall be filed with the Clerk no later than 5:00 o’clock p.m. on October 11, 2006.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Response requested
Order issued and filed September 27, 2006
r to offer evidence of the offense itself or to suggest that the defendant should be found competent because of the seriousness of the crime. Parker v. State, 667 S.W.2d 185, 188 (Tex. App.—Texarkana 1983, pet. ref'd), cert. denied, 469 U.S. 1085, 105 S.Ct. 590, 83 L.Ed.2d 699 (1984). However, not every mention of the crime will be prejudicial. Id. The statement must be so inflammatory and misleading that it prevents a fair determination of the question of competency and denies the defendant due process of law. Id. Appellant complains about the State's eliciting testimony that he was charged with aggravated robbery. This testimony was, however, introduced without objection. Objections to the introduction of evidence are to be made at the time the evidence is offered. Wilson v. State, 511 S.W.2d 531, 532 (Tex. Crim. App. 1974). If no timely objection is made to the testimony, then nothing is presented for review. Verret v. State, 470 S.W.2d 883, 886 (Tex. Crim. App. 1971); Tex. R. App. P. 52(a).
Appellant also complains that the State introduced evidence of the facts of the crime when it offered testimony that his fingerprints were found in the car used in the crime. The court sustained Appellant's objection to the testimony and instructed the jury to disregard it. The instruction was curative. See Revada v. State, 761 S.W.2d 426, 428 (Tex. App.—Houston [14th Dist.] 1988, no pet.). However, the State subsequently introduced virtually the same testimony without objection. Appellant's failure to object to the admission of testimony after identical testimony had been ruled inadmissible waived any complaint. See id.; Tex. R. App. P. 52(a). Under the circumstances, we find that the statements were not so inflammatory and misleading that they prevented a fair determination of the question of competency and denied the Appellant due process of law. See Parker, 667 S.W.2d at 188. We overrule point two.
Appellant complains in point three that the evidence was insufficient to support a finding that he was competent to stand trial. A person is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code. Crim. Proc. Ann. art. 46.02 (Vernon 1979).
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