in Re Lonnie Kade Welsh, Relator

• Court: Court of Appeals of Texas
• Decided: October 19, 2021
• Docket: 07-21-00187-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00187-CR ________________________

IN RE LONNIE KADE WELSH, RELATOR

OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

October 19, 2021

MEMORANDUM OPINION Before QUINN, C.J., PARKER and DOSS, JJ.

Relator Lonnie Kade Welsh has filed his pro se petition for writ of mandamus

asking this court to direct Respondent the Honorable Felix Klein sitting as presiding judge

of the 154th District Court of Lamb County to rule on Welsh’s petition for pretrial writ of

habeas corpus filed on July 26, 2021, in a pending criminal matter. We deny his petition.

Background

Welsh was charged with assault upon a contractor performing a service in a civil

commitment facility. In the trial court, he filed a pro se petition for pretrial writ of habeas

corpus, challenging, among other things, the constitutionality of the penal code provision

under which he was charged. Welsh provided this court a copy of his pro se petition for writ of habeas corpus. Welsh represents in his petition for writ of mandamus pending

here that he has undertaken efforts to comply with the presentment of his petition for writ

of habeas corpus and has tried to alert Respondent directly of Welsh’s desire for a hearing

and ruling on that petition. We have noted a copy of Welsh’s “Notice to the Court of

Pending Motions and Request of Hearing.”

Welsh explains that he also sought permission from the trial court to represent

himself in trial on the assault charges. Per his representations to this Court, a hearing

was held on that matter, but we have nothing demonstrating the trial court’s ruling.

Since the time of his filing the petition for writ of mandamus, the trial court held a

competency hearing and ostensibly found Welsh to be competent to proceed to trial.

From what the office of the Clerk of this Court has garnered, there has not been a trial

date set as of yet.

Applicable Law

When, as here, a relator seeks to compel the performance of a ministerial act, a

relator must also show (1) a legal duty to perform a nondiscretionary act; (2) a demand

for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979); In re Gilbreath, No. 07-20-00244-CV, 2021 Tex. App. LEXIS 979, at *10 (Tex.

App.—Amarillo Feb. 8, 2021, orig. proceeding) (mem. op.). Regarding the first element,

the relator must show that the act to be compelled is ministerial as opposed to

discretionary. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). We address this element first.

Although a trial court may certainly permit hybrid representation in its discretion,

there is no absolute right to hybrid representation. See Scarbrough v. State, 777 S.W.2d

2 83, 92 (Tex. Crim. App. 1989) (en banc). Because there is no absolute right to hybrid

representation, a trial court’s ruling on such representation is not a ministerial act; it is a

discretionary one. See In re Lawson, No. 14-10-01060-CR, 2010 Tex. App. LEXIS 9155,

at *1 (Tex. App.—Houston [14th Dist.] Nov. 18, 2010, orig. proceeding) (per curiam)

(mem. op.).

If relator is represented by counsel, the trial court is free to disregard appellant’s

pro se filings. In re Hall, No. 05-21-00641-CV, 2021 Tex. App. LEXIS 7798, at *3 (Tex.

App.—Dallas Sept. 22, 2021, orig. proceeding) (mem. op.) (citing Robinson v. State, 240

S.W.3d 919, 922 (Tex. Crim. App. 2007)). In other words, the trial court does not have a

ministerial duty to rule upon appellant’s writ application. See id.; see also In re Tarkington,

No. 03-21-00194-CV, 2021 Tex. App. LEXIS 3405, at *1 (Tex. App.—Austin May 4, 2021)

(mem. op.) (also relying on Robinson to conclude, when faced with a petition for writ of

mandamus seeking to compel the trial court to rule on pro se motions, that “Relator is not

entitled to mandamus relief because the trial court has not violated any ministerial duty

by failing to rule on those pro se motions”); In re Bledsoe, No. 06-14-00113-CR, 2014

Tex. App. LEXIS 7878, at *1–2 (Tex. App.—Texarkana July 23, 2014, orig. proceeding)

(mem. op.) (after having been advised by the district clerk that relator was represented

by appointed counsel, denying similar mandamus relief because relator had no right to

hybrid representation).

Discussion

This Court has been informed that Welsh has appointed counsel. And, though

Welsh requested leave from the trial court to represent himself, nothing in the record

reflects that such leave was granted. Without such information, we cannot assess if the

3 trial court had any obligation to act upon the pro se habeas application of Welsh. Again,

it need not act upon pro se motions when the movant has legal counsel.

It is incumbent upon Welsh, as relator, to provide this Court with all documentation

to show him entitled to the extraordinary relief of mandamus. See Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). In view of that obligation, Welsh has not

provided a record sufficient to permit accurate consideration of his request or to illustrate

his entitlement of mandamus relief.

The petition for writ of mandamus is denied. All pending motions are denied as

moot.

Per Curiam

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