in Re Joseph Campbell

• Court: Court of Appeals of Texas
• Decided: May 10, 2011
• Docket: 14-11-00384-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed May 10, 2011.

In The

Fourteenth Court of Appeals

____________

NO. 14-11-00384-CR

NO. 14-11-00385-CR

INRE JOSEPH CAMPBELL, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

178th District Court

Harris County, Texas

Trial Court Cause Nos. 127313701010 & 127313801010

M E M O R A N D U M   O P I N I O N

            On May 2, 2011, relator Joseph Campbell, who is confined in jail awaiting trial, filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.  Relator complains that respondent, the presiding judge of the 178th District Court of Harris County, has not ruled on his motion to dismiss his court-appointed attorney and permit him to represent himself at trial. 

            An accused may dismiss appointed counsel and proceed pro se if the waiver of his right to counsel is made “knowingly and intelligently.”  See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, (1975).  To invoke the right of self-representation, the accused must make a clear and unequivocal demand to the trial court.  Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). . 

To be entitled to mandamus relief in a criminal case, a relator must show that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).  Consideration of a motion that is properly filed and before the court is a ministerial act.  State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).  A relator must establish the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so.  In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding) (relator must show that trial court received, was aware of, and was asked to rule on motion). 

Relator has not provided this court with a copy of the motion on which he seeks a ruling.  It is relator’s burden to provide this court with a record sufficient to establish his right to relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R. App. P. 52.3(k), 52.7(a).  Relator has not established that the motion was properly filed and that the trial court was asked to rule on it but failed to do so. 

Accordingly, we deny relator’s petition for writ of mandamus.

                                                                        PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).