in Re Elijah Martinez

• Court: Court of Appeals of Texas
• Decided: December 10, 2008
• Docket: 04-08-00825-CR
• Status: Published

Opinion

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MEMORANDUM OPINION

No. 04-08-00825-CR

IN RE Elijah MARTINEZ

Original Mandamus Proceeding1

PER CURIAM

Sitting: Alma L. López, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: December 10, 2008

PETITION FOR WRIT OF MANDAMUS DENIED

On November 7, 2008, relator Elijah Martinez filed a petition for writ of mandamus,

complaining of the trial court’s failure to rule on various motions. Counsel has been appointed to

represent relator in the trial court. We conclude that relator’s appointed counsel in the trial court is

also his counsel for an original proceeding on the issue presented.

To obtain mandamus relief in a criminal matter, the relator must establish: (1) the act sought

to be compelled is ministerial rather than discretionary in nature, and (2) there is no adequate remedy

at law. Deleon v. District Clerk, 187 S.W.3d 473, 474 (Tex. Crim. App. 2006). Respondent has no

ministerial duty to rule on relator’s pro se motions because relator is represented by appointed

1 … This proceeding arises out of Cause No. 2008-CR-6967, styled The State of Texas v. Elijah Martinez, pending in the 175th Judicial District Court, Bexar County, Texas, the Honorable Mary Román presiding. 04-08-00825-CR

counsel and is not entitled to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922

(Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995).

Consequently, the respondent did not violate a ministerial duty by declining to rule on relator’s

motions. Therefore, this court has determined that relator is not entitled to the relief sought.

Accordingly, relator’s petition for writ of mandamus is denied. TEX . R. APP . P. 52.8(a).

DO NOT PUBLISH

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