IN THE TENTH COURT OF APPEALS
No. 10-24-00102-CR
IN RE MITCHELL DEAN COCHRAN
From the 54th District Court McLennan County, Texas Trial Court No. 2012-20-C2
MEMORANDUM OPINION
Relator filed a petition for writ of mandamus asking this Court to compel Judge
Susan Kelly, District Judge of the 54th Judicial District Court of McLennan County, Texas,
to vacate certain orders regarding his motions for appointment of habeas counsel and to
compel his trial attorney to provide his client file.1 See TEX. R. APP. P. 52. Relator also
asks us to reverse an order signed by Judge Dib Waldrip, Presiding Judge of the Third
Administrative Judicial Region of Texas, denying Relator’s motion to recuse Judge Kelly.
We deny Relator’s petition for writ of mandamus.
1On April 16, 2015, this Court affirmed the trial court’s judgments of Relator’s underlying convictions on direct appeal. See Cochran v. State, No. 10-14-00013-CR, 2015 Tex. App. LEXIS 3860, at *7 (Tex. App.—Waco Apr. 16, 2015, pet. ref’d) (mem. op.) (not designated for publication). APPLICABLE LAW
To obtain mandamus relief in a criminal case, a relator must demonstrate that (1)
he has no other adequate remedy at law, and (2) the act sought to be compelled is
ministerial. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). A court
has a ministerial duty to rule on a properly filed and timely presented motion, although
it generally has no ministerial duty to rule a certain way on that motion. In re Allen, 462
S.W.3d 47, 50 (Tex. Crim. App. 2015). An act is ministerial if the relator can show a “‘clear
right to the relief sought,’ meaning that the merits of the relief sought are ‘beyond
dispute.’” In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (internal citations
omitted).
DISCUSSION
Judge Kelly’s Orders
Relator alleges that Judge Kelly signed orders on or about December 6, 2023 that
denied his “Motion to Compel Production and Delivery of the Attorney-Client File with
Incorporated Motion Upon the State of Texas to Show Cause with Additional Orders for
Production and In Camera Reviews” and “Motion for Appointment of Counsel.” He
asserts that Kelly’s orders should be vacated because they are “void for illegality” because
they “overrule or circumvent the precedential holdings” that the client’s file belongs to
the client. See id.
We first note that Relator has the burden to provide this Court with a sufficient
record to establish his right to mandamus relief. See TEX. R. APP. P. 52.7. Specifically,
Relator is required to file with his petition a certified or sworn copy of every document
In re Cochran Page 2 that is material to the claim for relief, including any order complained of. See TEX. R. APP.
P. 52.7(a)(1) (relating to necessary documents to be included in the record), 52.3(k)(1)(A)
(relating to necessary documents to be included in the appendix). Though Relator
provided copies of his aforementioned motions in an appendix attached to his mandamus
petition, he did not provide this Court with a copy, certified or otherwise, of any of the
complained-of orders signed by Judge Kelly.
Further, Relator has failed to show that Judge Kelly’s rulings on his motions are
ministerial and “dictate but one rational decision.” See Weeks, 391 S.W.3d at 122.
Regarding his motion to compel production of his client file, Relator included in his
appendix two letters from trial counsel, which were also attached to his motion in the
trial court. In these letters, trial counsel explains that he provided Relator’s entire client
file to Relator’s appellate counsel and permitted other representatives and agents of
Relator to review the client file, per Relator’s written requests. Counsel also explains his
position as to why he could not provide copies of discovery obtained from the McLennan
County District Attorney’s Office directly to Relator and states that he conferred with an
ethics attorney for the State Bar of Texas to confirm that his position was correct.2 We do
not know why the trial court denied Relator’s motion to compel production of his client
file; however, the merits of the relief sought are not “beyond dispute.”
2 Relator’s underlying criminal charges pre-date the applicability of Texas Code of Criminal Procedure Article 39.14(f), which specifically prohibits trial counsel from providing to the defendant any copies of the discovery provided by the State, other than a copy of the defendant’s own statement. See TEX. CODE CRIM. PRO. ANN. art. 39.14(f). This provision applies only to the prosecution of an offense committed on or after January 1, 2014.
In re Cochran Page 3 Regarding his motion for appointment of counsel, Relator requested appointment
of counsel pursuant to Texas Code of Criminal Procedure Article 1.051(d)(3) to pursue a
writ of habeas corpus. See TEX. CODE CRIM. PRO. art. 1.051(d)(3). Appointment is
permitted pursuant to this provision “if the court concludes that the interests of justice
require representation.” See id. “The clear-legal-right requirement necessitates that the
law plainly describes the duty to be performed, such that there is no room for the exercise
of discretion.” Winters v. Presiding Judge of the Crim. Dist. Ct. No. Three, 118 S.W.3d 773,
775-76 (Tex. Crim. App. 2003). The trial court’s determination of whether to appoint
counsel pursuant to this provision is discretionary, not ministerial.
Thus, the acts sought to be compelled by Relator are not ministerial in nature.
Accordingly, we deny Relator’s request for mandamus relief on his first issue.
Judge Waldrip’s Order
After Judge Kelly denied Relator’s motions, he asserts that he filed a motion for
new trial as well as a motion to recuse Judge Kelly from presiding over the new trial. See
TEX. R. CIV. P. 18a. The appendix filed by Relator does not include a copy of these
motions; however, the appendix reflects that Relator’s recusal motion was considered by
the Honorable Judge Dib Waldrip. Judge Waldrip summarily denied the motion for
recusal for failure to strictly comply with Texas Rule of Civil Procedure 18a and failure
to sufficiently state a proper ground of recusal pursuant to Texas Rule of Civil Procedure
In re Cochran Page 4 18b(b).3 See id. at 18a, 18b(b). He also provided findings of fact and conclusions of law
supporting his decision. Judge Waldrip concluded that Relator’s verification was
insufficient, that the motion was untimely filed, and that many of the allegations within
the motion and attached affidavit were based on inadmissible hearsay such that Relator
failed to establish a prima facie case of the grounds alleged. See id. at 18a(a)(4)(A),
18a(a)(4)(B), 18a(b)(1)(B), 18b(b)(1), 18b(b)(2).
The denial of a motion to recuse may be reviewed only for an abuse of discretion
by appeal from the final judgment. See id. at 18a(j)(1). Nonetheless, mandamus relief
may be available when a judge whom the party seeks to recuse refuses either to recuse or
to refer the motion to the administrative judge. See id. at 18a(f)(1); see also In re Norman,
191 S.W.3d 858
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IN THE TENTH COURT OF APPEALS
No. 10-24-00102-CR
IN RE MITCHELL DEAN COCHRAN
From the 54th District Court McLennan County, Texas Trial Court No. 2012-20-C2
MEMORANDUM OPINION
Relator filed a petition for writ of mandamus asking this Court to compel Judge
Susan Kelly, District Judge of the 54th Judicial District Court of McLennan County, Texas,
to vacate certain orders regarding his motions for appointment of habeas counsel and to
compel his trial attorney to provide his client file.1 See TEX. R. APP. P. 52. Relator also
asks us to reverse an order signed by Judge Dib Waldrip, Presiding Judge of the Third
Administrative Judicial Region of Texas, denying Relator’s motion to recuse Judge Kelly.
We deny Relator’s petition for writ of mandamus.
1On April 16, 2015, this Court affirmed the trial court’s judgments of Relator’s underlying convictions on direct appeal. See Cochran v. State, No. 10-14-00013-CR, 2015 Tex. App. LEXIS 3860, at *7 (Tex. App.—Waco Apr. 16, 2015, pet. ref’d) (mem. op.) (not designated for publication). APPLICABLE LAW
To obtain mandamus relief in a criminal case, a relator must demonstrate that (1)
he has no other adequate remedy at law, and (2) the act sought to be compelled is
ministerial. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). A court
has a ministerial duty to rule on a properly filed and timely presented motion, although
it generally has no ministerial duty to rule a certain way on that motion. In re Allen, 462
S.W.3d 47, 50 (Tex. Crim. App. 2015). An act is ministerial if the relator can show a “‘clear
right to the relief sought,’ meaning that the merits of the relief sought are ‘beyond
dispute.’” In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (internal citations
omitted).
DISCUSSION
Judge Kelly’s Orders
Relator alleges that Judge Kelly signed orders on or about December 6, 2023 that
denied his “Motion to Compel Production and Delivery of the Attorney-Client File with
Incorporated Motion Upon the State of Texas to Show Cause with Additional Orders for
Production and In Camera Reviews” and “Motion for Appointment of Counsel.” He
asserts that Kelly’s orders should be vacated because they are “void for illegality” because
they “overrule or circumvent the precedential holdings” that the client’s file belongs to
the client. See id.
We first note that Relator has the burden to provide this Court with a sufficient
record to establish his right to mandamus relief. See TEX. R. APP. P. 52.7. Specifically,
Relator is required to file with his petition a certified or sworn copy of every document
In re Cochran Page 2 that is material to the claim for relief, including any order complained of. See TEX. R. APP.
P. 52.7(a)(1) (relating to necessary documents to be included in the record), 52.3(k)(1)(A)
(relating to necessary documents to be included in the appendix). Though Relator
provided copies of his aforementioned motions in an appendix attached to his mandamus
petition, he did not provide this Court with a copy, certified or otherwise, of any of the
complained-of orders signed by Judge Kelly.
Further, Relator has failed to show that Judge Kelly’s rulings on his motions are
ministerial and “dictate but one rational decision.” See Weeks, 391 S.W.3d at 122.
Regarding his motion to compel production of his client file, Relator included in his
appendix two letters from trial counsel, which were also attached to his motion in the
trial court. In these letters, trial counsel explains that he provided Relator’s entire client
file to Relator’s appellate counsel and permitted other representatives and agents of
Relator to review the client file, per Relator’s written requests. Counsel also explains his
position as to why he could not provide copies of discovery obtained from the McLennan
County District Attorney’s Office directly to Relator and states that he conferred with an
ethics attorney for the State Bar of Texas to confirm that his position was correct.2 We do
not know why the trial court denied Relator’s motion to compel production of his client
file; however, the merits of the relief sought are not “beyond dispute.”
2 Relator’s underlying criminal charges pre-date the applicability of Texas Code of Criminal Procedure Article 39.14(f), which specifically prohibits trial counsel from providing to the defendant any copies of the discovery provided by the State, other than a copy of the defendant’s own statement. See TEX. CODE CRIM. PRO. ANN. art. 39.14(f). This provision applies only to the prosecution of an offense committed on or after January 1, 2014.
In re Cochran Page 3 Regarding his motion for appointment of counsel, Relator requested appointment
of counsel pursuant to Texas Code of Criminal Procedure Article 1.051(d)(3) to pursue a
writ of habeas corpus. See TEX. CODE CRIM. PRO. art. 1.051(d)(3). Appointment is
permitted pursuant to this provision “if the court concludes that the interests of justice
require representation.” See id. “The clear-legal-right requirement necessitates that the
law plainly describes the duty to be performed, such that there is no room for the exercise
of discretion.” Winters v. Presiding Judge of the Crim. Dist. Ct. No. Three, 118 S.W.3d 773,
775-76 (Tex. Crim. App. 2003). The trial court’s determination of whether to appoint
counsel pursuant to this provision is discretionary, not ministerial.
Thus, the acts sought to be compelled by Relator are not ministerial in nature.
Accordingly, we deny Relator’s request for mandamus relief on his first issue.
Judge Waldrip’s Order
After Judge Kelly denied Relator’s motions, he asserts that he filed a motion for
new trial as well as a motion to recuse Judge Kelly from presiding over the new trial. See
TEX. R. CIV. P. 18a. The appendix filed by Relator does not include a copy of these
motions; however, the appendix reflects that Relator’s recusal motion was considered by
the Honorable Judge Dib Waldrip. Judge Waldrip summarily denied the motion for
recusal for failure to strictly comply with Texas Rule of Civil Procedure 18a and failure
to sufficiently state a proper ground of recusal pursuant to Texas Rule of Civil Procedure
In re Cochran Page 4 18b(b).3 See id. at 18a, 18b(b). He also provided findings of fact and conclusions of law
supporting his decision. Judge Waldrip concluded that Relator’s verification was
insufficient, that the motion was untimely filed, and that many of the allegations within
the motion and attached affidavit were based on inadmissible hearsay such that Relator
failed to establish a prima facie case of the grounds alleged. See id. at 18a(a)(4)(A),
18a(a)(4)(B), 18a(b)(1)(B), 18b(b)(1), 18b(b)(2).
The denial of a motion to recuse may be reviewed only for an abuse of discretion
by appeal from the final judgment. See id. at 18a(j)(1). Nonetheless, mandamus relief
may be available when a judge whom the party seeks to recuse refuses either to recuse or
to refer the motion to the administrative judge. See id. at 18a(f)(1); see also In re Norman,
191 S.W.3d 858, 860 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding). Based on
the information provided by Relator, his motion to recuse was referred to the
administrative judge, reviewed, and subsequently denied. Relator has failed to show that
he had no adequate remedy at law through direct appeal to complain about the denial of
his motion to recuse.4
We therefore deny Relator’s petition for writ of mandamus.
3Judge Waldrip denied the motion without oral hearing, as permitted by Texas Rule of Civil Procedure 18a(g)(3)(A) when a motion does not comply with the requirements of Rule 18a. See TEX. R. CIV. P. 18a(g)(3)(A).
4Relator relies upon Texas Rule of Civil Procedure 18a(j)(2) to support his pursuit of mandamus relief on this issue. See TEX. R. CIV. P. 18a(j)(2). Mandamus review pursuant to Rule 18a(j)(2) applies to rulings on motions to disqualify, not motions for recusal. See id. As noted, we do not have copy of Relator’s motion. However, according to Judge Waldrip’s Findings of Facts and Conclusions of Law, Relator alleged grounds for recusal under Rule 18b(b)(1) & (2), not grounds for disqualification under Rule 18b(a).
In re Cochran Page 5 STEVE SMITH Justice
Before Chief Justice Gray, Justice Davis,5 and Justice Smith Petition denied Opinion delivered and filed September 12, 2024 [OT06]
5 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court. See TEX. GOV’T CODE §§ 74.003, 75.002, 75.003.
In re Cochran Page 6