in Re Francisco Gomez

• Court: Court of Appeals of Texas
• Decided: August 4, 2011
• Docket: 14-11-00620-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed August 4, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00620-CR

In Re FRANCISCO GOMEZ, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

208th District Court

Harris County, Texas

Trial Court Cause No. 9424768-C

MEMORANDUM  OPINION

On July 21, 2011, relator Francisco Gomez filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the Honorable Denise Collins, presiding judge of the 208th District Court of Harris County, to rule on his motion to expedite.

On July 17, 2008, relator filed a “Motion to Expedite the Order of Designating Issues Ordered by this Court on March 18, 2008.”  Relator alleges the trial court has failed to rule on his motion. 

In 1995, appellant was convicted of killing his wife, and this court affirmed his conviction.  Gomez v. State, No. 14-95-01481-CR; 1997 WL 539544 (Tex. App.—Houston [14th Dist.] 1997, no pet.).  In his motion to expedite, relator alleges he has discovered new evidence, and asks the trial court to grant his writ of habeas corpus. 

Mandamus is an extraordinary remedy that will not issue unless the relator demonstrates he has no adequate remedy at law, and that the act complained of is ministerial, not discretionary, in nature.  State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 926–27 (Tex. Crim. App. 2001).  A party seeking mandamus relief must provide the appellate court with a record containing certified or sworn copies “of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding.”  Tex. R. App. P. 52.7.

Relator has not demonstrated that he is entitled to extraordinary relief.  He has provided this court with a file-stamped copy of his motion to expedite and letters written to the court coordinator and the district clerk.  The record does not contain an application for writ of habeas corpus.  Further, there is no evidence that the trial court was made aware of relator’s motion.  From these documents the court is unable to identify the matters, if any, on which the trial court has failed to rule.

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

                                                                                    PER CURIAM

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish.  Tex. R. App. P. 47.2(b)