in Re: Jose Luis Aguirre

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

IN RE: JOSE LUIS AGUIRRE, Relator.	§ § § § § §	No. 08-07-00319-CR AN ORIGINAL PROCEEDING IN MANDAMUS

MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS

Jose Luis Aguirre has filed a pro se petition for writ of mandamus, seeking an order compelling the trial court to rule on his motion for appointment of counsel to pursue a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Because the record indicates that Relator's trial counsel continue to represent him, we deny the relief requested.

DISCUSSION

In order to obtain relief through a writ of mandamus, a relator must establish: (1) no other adequate remedy at law is available and (2) that the act he seeks to compel is ministerial. Dickens v. Court of Appeals For Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987). An act is ministerial if it does not involve the exercise of any discretion. State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App. 2001). However, a so-called discretionary function may become ministerial when the facts and circumstances dictate but one rational decision. Buntion v. Harmon, 827 S.W.2d 945, 948 n.2 (Tex.Crim.App. 1992).

According to Relator's petition he was represented by two appointed attorneys during his criminal trial. Although Relator expresses dissatisfaction with his trial counsel, there is no record that either has withdrawn from the representation. See Tex.R.Civ.P. 10. Relator has no right to hybrid representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App. 1995). In addition, a trial court has no duty to search for counsel agreeable to an indigent defendant. Bunion, 827 S.W.2d at 949; Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). Therefore the trial court has no legal duty to rule on Relator's pro se motions. See Hazelwood v. State, 838 S.W.2d 647, 649-50 (Tex.App.--Corpus Christi 1992 no pet.), citing Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App. 1981). As Relator has not shown a clear abuse of discretion, his petition for writ of mandamus is DENIED.

December 20, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)