in Re: Jackie Lynn Austin

• Court: Court of Appeals of Texas
• Decided: May 9, 2007
• Docket: 06-07-00063-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00063-CV

IN RE: JACKIE LYNN AUSTIN

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Jackie Lynn Austin, a defendant in a criminal case pending in the 102nd Judicial District Court of Red River County has filed a petition for writ of mandamus asking this Court to order the trial court to withdraw its order denying his motion for continuance, and directing the trial court to continue the case until Austin's state-appointed psychologist can complete his evaluation of the defendant.

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). The Texas Supreme Court explained that a trial court clearly abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). In this case, the issue is not a pure issue of law, and is thus a matter for determination by the trial court based on the information available to the court.

As also explained by the Texas Court of Criminal Appeals, to establish entitlement to mandamus relief, a relator must show (1) that the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law. Aranda v. District Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006); Winters v. Presiding Judge of Crim. Dist. Court No. Three of Tarrant County, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003).

The trial court's ruling on a motion for continuance is a discretionary decision. Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 2006). On appeal, to establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz, 906 S.W.2d at 511.

Thus, the trial court's decision on the motion to continue is a discretionary determination by the court, based on the factual circumstances surrounding the case, and is not ministerial in nature--and it is a ruling that (if appropriate) could be raised by counsel and addressed on appeal.

We deny the petition.

Bailey C. Moseley

Justice

Date Submitted: May 9, 2007

Date Decided: May 9, 2007

style="font-family: 'Times New Roman', serif">                                                                        Jack Carter

Date Submitted:          January 11, 2006

Date Decided:             January 12, 2006