in Re: the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 4, 2010
• Docket: 13-09-00670-CR
• Status: Published

Opinion

NUMBER 13-09-00670-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

IN RE THE STATE OF TEXAS ____________________________________________________________

On Petition for Writ of Mandamus. ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Vela Memorandum Opinion Per Curiam1

Relator, the State of Texas, filed a petition for writ of mandamus and motion for a

temporary stay of proceedings on December 15, 2009. In its petition, relator requested

the trial court to rescind an order granting the defendant’s motion to depose a State’s

witness in the underlying murder case. The trial court granted the motion on June 29,

2009. Thereafter, on September 24, 2009, the trial court decided the location where the

1 See T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions). deposition would be taken. The State complains of both actions by the trial court, arguing

in its petition that defendant has not complied with the requirements for taking the

deposition of an adverse witness set forth in TEX . CODE CRIM . PROC . ANN . § 39.02 (Vernon

2005).

Mandamus relief is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235

S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d

257, 259 (Tex. 2008) (orig. proceeding). In order to obtain mandamus relief, the relator

must show that the trial court clearly abused its discretion and that the relator has no

adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36

(Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding));

see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding).

Stated otherwise, mandamus may be available upon a showing that (1) a trial court clearly

abused its discretion by failing to correctly apply the law, and (2) the benefits and

detriments of mandamus render appeal inadequate. See In re Schmitz, 285 S.W.3d 451,

458 (Tex. 2009) (orig. proceeding).

To satisfy the clear abuse of discretion standard, the relator must show that the trial

court could “reasonably have reached only one decision.” Liberty Nat'l Fire Ins. Co. v.

Akin, 927 S.W.2d 627, 630 (Tex. 1996) (quoting Walker, 827 S.W.2d at 840). Based on

the foregoing, relator has failed to meet its burden to provide this Court with a sufficient

record to establish its right to relief. See Walker, 827 S.W.2d at 837; In re Gallardo, 269

S.W.3d 643, 645 (Tex. App.–San Antonio 2008, orig. proceeding).

Accordingly, the Court, having examined and fully considered the petition for writ of

mandamus and motion for emergency relief, is of the opinion that relator has not shown

2 itself entitled to the relief sought. Accordingly, the petition for writ of mandamus and

motion for emergency relief are DENIED. See TEX . R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 4th day of January, 2010.