in Re Devin Paul Cole

• Court: Court of Appeals of Texas
• Decided: January 26, 2021
• Docket: 01-20-00807-CR
• Status: Published

Opinion

Opinion issued January 26, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00807-CR ——————————— IN RE DEVIN PAUL COLE, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Devin Paul Cole, incarcerated and acting pro se, has filed a petition

for writ of mandamus, requesting that this Court order respondent, the Honorable

Abigail Anastasio, to “enter a [f]inding of [p]rosecutorial [m]isconduct” against

three Harris County assistant district attorneys, to declare a mistrial, “to [o]rder

[p]rosecutors to [p]roduce and [d]isclose the [g]rand [j]ury [t]ranscripts” and other

materials, to “[d]ismiss th[e] [p]rosecution and [i]ndictment with [p]rejudice,” and to “enter[] a [d]eclaration of [a]ctual [i]nnocence and [o]rder[] [r]elator[’]s release

from the Harris County Jail—[i]mmediately.” Relator also requests that this Court

direct Harris County District Attorney Kim Ogg and two assistant Harris County

district attorneys to “[d]ismiss th[e] [p]rosecution and [i]ndictment” and that the

Court “[i]ssue an [o]rder [d]eclaring a [m]istrial [d]ue to [p]rosecutorial

[m]isconduct” for the State’s purported withholding of the complainant’s alleged

criminal history and “[e]xculpatory – [i]mpeachment [e]vidence” from the Harris

County Grand Jury. Finally, relator requests that this Court issue an order

“[s]pecifically finding [that] he [h]as [b]een [d]enied a [f]air and [i]mpartial [t]rial

and a [f]inding of a [m]alicious [p]rosecution, [o]fficial [o]ppression and [a]buse of

[o]fficial [c]apacity.”

We deny the petition for writ of mandamus.1

First, we note that relator’s petition does not comply with the requirements

enumerated in the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.4;

52.3(a)–(d), (g), (h), (k); see also TEX. R. APP. P 52.7. Further, relator’s appendix,

attached to his petition for writ of mandamus, does not satisfy the Texas Rules of

Appellate Procedure. See TEX. R. APP. P. 52.3(k)(1) (requiring original

proceedings to be filed with appendix that contains “a certified or sworn copy of

1 The underlying case is State of Texas v. Devin Paul Cole, Cause No. 1666250, pending in the 184th District Court of Harris County, Texas, the Honorable Abigail Anastasio presiding.

2 any order complained of, or any other document showing the matter complained

of”); TEX. R. APP. P. 52.7(a) (requiring relator to file with his petition “a certified

or sworn copy of every document that is material to the relator’s claim for relief

and that was filed in any underlying proceeding”). Most of the documents attached

to relator’s petition are unsworn, and there is no indication that relator filed, in the

trial court, the motions for which he now seeks mandamus relief. In the absence of

an adequate appendix and mandamus record, this Court cannot evaluate the merits

of relator’s petition. See In re McCreary, No. 12-15-00067-CR, 2015 WL

1395783, at *1 (Tex. App.—Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not

designated for publication) (“Without an appendix and a record, we are unable to

determine that [r]elator is entitled to mandamus relief.”).

Second, there is no showing that the trial court refused to rule on any motion

or request for the relief that relator seeks in this Court. See O’Connor v. First

Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (to obtain mandamus relief,

relator must show trial court had legal duty to perform non-discretionary act,

relator made demand for performance, and trial court refused). Although relator’s

appendix, attached to his petition for writ of mandamus, includes a “[m]otion to

[d]ismiss [p]rosecution and [i]ndictment [d]ue to [s]erious [c]redibility [i]ssues

with [c]omplaint” and a “[m]otion and [a]pplication for [s]ubpoena to [p]roduce

[g]rand [j]ury [t]ranscript[s], [g]rand [j]ury [m]inute[s], [m]aterial[s], [a]udio and

3 [v]ideo [r]ecording[s] and the [n]ame[s] and [i]nformation” of all the grand jurors

involved in his case, there is no indication that either motion was filed or brought

to the trial court’s attention. The appendix also includes a letter that relator sent to

his attorney. The letter references a motion to compel an in-camera hearing to

review evidence in the State’s possession, but the motion itself is not included in

the appendix attached to relator’s petition. And there is no indication that such a

motion was filed or brought to the trial court’s attention. This Court cannot order

the trial court to rule on any of the aforementioned motions, and this Court does

not have the authority to declare sua sponte a mistrial due to prosecutorial

misconduct or to issue an order finding that relator was denied a fair trial or that

malicious prosecution, official oppression, or abuse of official capacity occurred.

Finally, this Court lacks authority to issue a writ of mandamus against a

district attorney or assistant district attorneys. Garner v. Gately, 909 S.W.2d 61,

62 (Tex. App.—Waco 1995, orig. proceeding); see also In re Mays, No.

11-14-00310-CR, 2014 WL 6603371, at *1 (Tex. App.—Eastland Nov. 20, 2014,

orig. proceeding) (mem. op., not designated for publication). This Court only has

jurisdiction to issue a writ of mandamus against “a judge of a district or county

court in the court of appeals district.” TEX. GOV’T CODE ANN. § 22.221(b).

Accordingly, we deny relator’s petition for writ of mandamus. All pending

motions are dismissed as moot.

4 PER CURIAM

Panel consists of Justices Hightower, Countiss, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).