in Re Marquise D. Hodge ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00113-CR
IN RE MARQUISE D. HODGE
Original Proceeding
From the 40th District Court
Ellis County, Texas
Trial Court No. 44293CR
MEMORANDUM OPINION
Relator's petition for writ of mandamus and prohibition, filed on May 25, 2021, is
denied. 1
Relator also presented within his petition a motion for leave to file his petition for
writ of mandamus. A motion for leave to file a petition for writ of mandamus is required
when relief by mandamus is sought from the Court of Criminal Appeals. TEX. R. APP. P.
72.1. The requirement for leave to file a petition for writ of mandamus at the court of
1
There are procedural problems with the petition in this proceeding, such as no service on the trial court
judge as the respondent and the State as the real-party-in-interest, no certification, and no certified or
sworn-to copy of the order or orders complained of as required by the Rules of Appellate Procedure. See
TEX. R. APP. P. 9.5 and 52.3(j), (k)(1)(A). However, to expedite this decision, we use Rule 2 to suspend the
operation of these rules. TEX. R. APP. P. 2.
appeals level was eliminated in 1997. See TEX. R. APP. P. 52, Notes and Comments. Thus,
under the applicable rules, if mandamus relief is sought from an intermediate court of
appeals, such as the Tenth Court of Appeals, a motion for leave to file the petition is
unnecessary. The petition was filed without regard to the motion for leave to file it.
Accordingly, the motion for leave to file a petition for writ of mandamus is dismissed as
moot. See In re Dawson, 10-19-00427-CR, 2019 Tex. App. LEXIS 10725 (Tex. App.—Waco
Dec. 11, 2019, orig. proceeding) (not designated for publication). 2
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Davis 3
Petition denied
Motion dismissed
Opinion delivered and filed June 23, 2021
Do not publish
[OT06]
2
To the extent relator’s motion for leave also requests permission to file one copy of the petition, that
request is granted. However, relator is not relieved of the obligation to serve his petition on the respondent
and the real-party-in-interest as required.
3
The Honorable Rex Davis, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief
Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
In re Hodge Page 2