in Re: Homer Marshall

• Court: Court of Appeals of Texas
• Decided: February 4, 2022
• Docket: 08-21-00224-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-21-00224-CR

IN RE § Appeal from the

HOMER MARSHALL, § 384th District Court

Relator. § of El Paso County, Texas

§ (TC# 20190D05679-384-1, 20200D05326-384-1, and 20200C05793)

MEMORANDUM OPINION

Relator, Homer Marshall, appearing pro se, has filed a petition for writ of mandamus,

stating the trial court has refused to hear and rule on the merits of his habeas corpus. Marshall

asserts “the trial court judge has a ministerial duty to hear and rule on the merits of the writ of

habeas corpus” and requests this Court issue a mandamus to the trial judge to hear and rule on his

writ of habeas corpus. We deny Marshall’s petition for lack of jurisdiction.

According to Marshall’s mandamus record, a writ of habeas corpus was filed pro se in the

trial court on November 12, 2021. He identifies three trial court cause numbers, two of which

correspond to publicly available docket sheets showing that he was indicted on felony charges,

and that a public defender was appointed by the trial court. His mandamus petition also confirms

he was appointed a public defender as his trial counsel. Generally, criminal defendants are not entitled to hybrid representation and a trial court judge is “free to disregard any pro se motions

presented by a defendant who is represented by counsel.” Robinson v. State, 240 S.W.3d 919,

922 (Tex.Crim.App. 2007). Even if Marshall’s habeas corpus was presented to the trial court, the

trial court judge had no obligation to consider or rule on it. See id. (a trial court’s refusal to rule

on a pro se motion is not subject to review); In re Hernandez, No. 08-21-00189-CR, 2021 WL

5027791, at *1 (Tex.App.--El Paso Oct. 29, 2021, orig. proceeding).

Marshall acknowledges the hybrid representation issue but claims that the Texas Code of

Criminal Procedure expressly allows both he and counsel to participate in the defense of a felony

charge. See TEX.CODE CRIM.PROC.ANN. art. 1.05 (“He shall have the right of being heard by

himself, or counsel, or both;”). But the Texas Court of Criminal Appeals has already held that

the Texas Constitutional Provision upon which article 1.05 is based, TEX.CONST. art. I, § 10, was

not intended to mandate a right to hybrid representation in criminal cases. Landers v. State, 550

S.W.2d 272, 277 (Tex.Crim.App. 1977) (op. on reh’g).

Here, likewise, Marshall is not entitled to hybrid representation in this Court, and his pro

se petition for writ of mandamus must be disregarded. See Ex parte Bohannan, 350 S.W.3d 116,

116 n.1 (Tex.Crim.App. 2011) (where habeas applicant was represented by counsel, court must

disregard and take no action on pro se filings); In re Hall, No. 05-21-00641-CV, 2021 WL 4304569

at *2 (Tex.App.--Dallas Sept. 22, 2021, orig. proceeding) (mem. op., not designated for

publication); In re Tarkington, No. 03-21-00194-CV, 2021 WL 1742243 at *1 (Tex.App. --Austin

May 4, 2021)(mem. op., not designated for publication); In re Roberts, No. 01-21-00561-CR,

No. 01-21-00562-CR, 2021 WL 5056621 at *1 (Tex.App.--Houston [1st Dist.] Nov. 2, 2021, orig.

proceeding) (per curiam) (mem. op., not designated for publication).

2 Accordingly, we deny Marshall’s pro se petition for writ of mandamus for lack of

jurisdiction. See TEX.R.APP.P. 52.8(a).

JEFF ALLEY, Justice

February 4, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)