in Re Jesus Espinoza

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00570-CR

IN RE Jesus ESPINOZA

Original Mandamus Proceeding1

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: August 27, 2008

PETITION FOR WRIT OF MANDAMUS DENIED; APPLICATION FOR WRIT OF HABEAS CORPUS DISMISSED FOR LACK OF JURISDICTION

On August 4, 2008, Espinoza filed pro se original petitions requesting the issuance of a writ

of habeas corpus and a writ of mandamus. Espinoza chiefly complains of the trial court’s refusal

to set his case for trial. Espinoza is represented by counsel in the trial court. Because Espinoza’s

complaints relate to his pending criminal case, we conclude that trial counsel is Espinoza’s counsel

for any mandamus proceeding on the issues presented. Espinoza has no right to proceed pro se and

be represented by counsel at the same time. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim.

App. 1995); Gray v. Shipley, 877 S.W.2d 806, 806 (Tex. App.—Houston [1st Dist.] 1994, orig.

1 This proceeding arises out of Cause No. 2007-CR-9689, styled The State of Texas v. Jesus Espinoza, pending in the 144th Judicial District Court, Bexar County, Texas, the Honorable Catherine Torres-Stahl presiding. 04-08-00570-CR

proceeding). Thus, Espinoza’s mandamus petition will be treated as presenting nothing for this

court’s review.

Additionally, the Court of Criminal Appeals, the district courts, and the county courts are

authorized to issue writs of habeas corpus in criminal matters. See TEX . CODE CRIM . PRO . ANN . art.

11.05 (Vernon 2005). However, this court has no original habeas corpus jurisdiction in criminal

matters. See Watson v. State, 96 S.W.3d 497, 500 (Tex. App.—Amarillo 2002, pet. ref’d); Ex parte

Hearon, 3 S.W.3d 650, 650 (Tex. App.—Waco 1999, orig. proceeding); Dodson v. State, 988

S.W.2d 833, 835 (Tex. App.—San Antonio 1999, no pet.).

Accordingly, the mandamus petition is denied and the habeas corpus petition is dismissed

for lack of jurisdiction.

DO NOT PUBLISH

-2-