in Re Robert Calderon

• Court: Court of Appeals of Texas
• Decided: July 7, 2011
• Docket: 14-11-00538-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 7, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00538-CR

In Re Robert Calderon, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

10th District Court

Galveston County

Trial Court Cause No. 10CR1872

MEMORANDUM  OPINION

On June 22, 2011, relator Robert Calderon filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the Honorable David Garner, presiding judge of the 10th District Court of Galveston County to dismiss his indictment and release him from pretrial confinement.

To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and 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).  A defendant seeking to compel the dismissal of an indictment or complaint has an adequate remedy at law because he can file a motion to set aside the indictment in the trial court pursuant to article 27.03 of the Texas Code of Criminal Procedure.  See Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998); Ex parte Lamar, 184 S.W.3d 322, 324 (Tex. App.—Fort Worth 2005, orig. proceeding). 

Relator has not established entitlement to the extraordinary relief of writ of mandamus.  Accordingly, we deny relator’s petition for writ of mandamus.

                                                                                    PER CURIAM

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish — Tex.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