in Re Heriberto Hernandez, Relator

Opinion

MEMORANDUM OPINION No. 04-12-00454-CR

IN RE Heriberto HERNANDEZ

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: August 15, 2012

PETITION FOR WRIT OF MANDAMUS DENIED

On July 30, 2012, relator filed a petition for writ of mandamus, complaining the trial

court denied his motion to dismiss appointed counsel. However, in order to be entitled to

mandamus relief, relator must establish “(1) the act sought to be compelled is purely ministerial,

and (2) that there is no adequate remedy at law.” Benson v. District Clerk, 331 S.W.3d 431, 432

(Tex. Crim. App. 2011). Whether to dismiss appointed counsel is discretionary with the trial

court. See Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.). An act

that involves the exercise of any discretion is not ministerial. State ex rel. Hill v. Court of

Appeals for Fifth Dist., 34 S.W.3d 924, 929 (Tex. Crim. App. 2001). Accordingly, because the

1 This proceeding arises out of Cause No. 2011-CR-7651, styled State of Texas v. Heriberto Hernandez, in the 226th Judicial District Court, Bexar County, Texas, the Honorable Sid L. Harle presiding. 04-12-00454-CR

act sought to be compelled is not purely ministerial, we conclude the petition for writ of

mandamus should be DENIED. See TEX. R. APP. P. 52.8(a).

DO NOT PUBLISH

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