in Re Ricky Allen Gasper

• Court: Court of Appeals of Texas
• Decided: March 17, 2022
• Docket: 01-22-00077-CR
• Status: Published

Opinion

Opinion issued March 17, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00077-CR ——————————— IN RE RICKY ALLEN GASPER, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Ricky Allen Gasper, incarcerated and acting pro se, has filed a

petition for writ of mandamus, asserting that he is entitled “to an examining trial

prior to the issuance of an indictment.” Relator requests that this Court “cause the

trial court to honor, respond, and show cause why [he] continue[s] to be detained

in direct violation of Texas and federal statu[tes].” We deny the petition for writ of mandamus.1

First, relator’s petition does not comply with the requirements enumerated in

the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.5, 52.3(a)–(h), (j)–

(k); see also TEX. R. APP. P 52.7. Among other things, the petition lacks an

appendix and a record. See TEX. R. APP. P. 52.3(k)(1) (requiring petition for writ

of mandamus be filed with appendix that contains “a certified or sworn copy of

any order complained of, or any other document showing the matter complained

of”), 52.7(a) (requiring petition for writ of mandamus be filed with record

containing “a certified or sworn copy of every document that is material to the

relator’s claim for relief and that was filed in any underlying proceeding” and

“properly authenticated transcript of any relevant testimony from any underlying

proceeding”). In the absence of an appendix and record, this Court cannot evaluate

the merits of relator’s petition. See In re Jammer, No. 01-21-00598-CR, 2021 WL

5774175, at *1 (Tex. App.—Houston [1st Dist.] Dec. 7, 2021, no pet.) (mem. op.,

not designated for publication); In re McCreary, No. 12-15-00067-CR, 2015 WL

1395783, at *1 (Tex. App.—Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not

designated for publication) (“Without an appendix and a record, we are unable to

determine that [r]elator is entitled to mandamus relief”).

1 The underlying case is The State of Texas v. Ricky Allen Gasper, Cause No. 1703219, pending in the 185th District Court of Harris County, Texas, the Honorable Abigail Anastasio presiding.

2 Second, there is no showing that the trial court refused to rule on any motion

or request for the relief that relator seeks in this Court. See O’Connor v. First

Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (to obtain mandamus relief,

relator must show trial court had legal duty to perform non-discretionary act,

relator made demand for performance, and trial court refused); In re Dong Sheng

Huang, 491 S.W.3d 383, 385 (Tex. App.—Houston [1st Dist.] 2016, orig.

proceeding) (“Filing a request for a ruling is insufficient to call the matter to the

judge’s attention because a judge may be unaware of the request. Instead, the

party demanding a ruling must set its request either for submission or a hearing.”);

see also In re Jammer, 2021 WL 5774175, at *1.

Third, relator requests that this Court “cause the trial court to honor,

respond, and show cause why [he] continue[s] to be detained in direct violation of

Texas and federal statu[tes].” To the extent that relator seeks habeas relief in his

mandamus petition, we lack jurisdiction over the request. See, e.g., In re Jammer,

2021 WL 5774175, at *2. We do not have original habeas corpus jurisdiction in

criminal matters. See TEX. GOV’T CODE ANN. § 22.221(d); In re Spriggs, 528

S.W.3d 234, 236 (Tex. App.—Amarillo 2017, orig. proceedings); In re Ayers, 515

S.W.3d 356, 356 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding); see

also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)

3 (only Texas Court of Criminal Appeals has “jurisdiction in final post-conviction

felony proceedings”).

Finally, relator’s petition fails on the merits. An examining trial puts “the

State to its burden of proving that probable cause exists to believe the accused

committed the offense charged against him.” State ex rel. Holmes v. Salinas, 784

S.W.2d 421, 425 (Tex. Crim. App. 1990). However, once the grand jury has

returned a probable cause determination by an indictment, the purpose for

an examining trial is satisfied and the defendant is no longer entitled to one. See

id.; see also In re Webb, No. 01-21-00650-CR, 2021 WL 5828934, at *1 (Tex.

App.—Houston [1st Dist.] Dec. 9, 2021, orig. proceeding) (mem. op., not

designated for publication). In his mandamus petition, relator concedes that a

Harris County Grand Jury issued a true bill of indictment in his underlying

criminal case. Further, before relator filed his mandamus petition, he, with an

agreed punishment recommendation from the State, pleaded guilty to the felony

offense of burglary2 in his underlying criminal case. And the trial court, in

accordance with the plea agreement, assessed appellant’s punishment at

confinement for one year. Relator has not established his entitlement to mandamus

relief. See, e.g., In re Webb, 2021 WL 5828934, at *1.

2 See TEX. PENAL CODE ANN. § 30.02.

4 We deny relator’s petition for writ of mandamus. All pending motions are

dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Countiss and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).