in Re: Homer Marshall ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-21-00224-CR
IN RE § Appeal from the
HOMER MARSHALL, § 384th District Court
Relator. § of El Paso County, Texas
§ (TC# 20190D05679-384-1,
20200D05326-384-1, and 20200C05793)
MEMORANDUM OPINION
Relator, Homer Marshall, appearing pro se, has filed a petition for writ of mandamus,
stating the trial court has refused to hear and rule on the merits of his habeas corpus. Marshall
asserts “the trial court judge has a ministerial duty to hear and rule on the merits of the writ of
habeas corpus” and requests this Court issue a mandamus to the trial judge to hear and rule on his
writ of habeas corpus. We deny Marshall’s petition for lack of jurisdiction.
According to Marshall’s mandamus record, a writ of habeas corpus was filed pro se in the
trial court on November 12, 2021. He identifies three trial court cause numbers, two of which
correspond to publicly available docket sheets showing that he was indicted on felony charges,
and that a public defender was appointed by the trial court. His mandamus petition also confirms
he was appointed a public defender as his trial counsel. Generally, criminal defendants are not
entitled to hybrid representation and a trial court judge is “free to disregard any pro se motions
presented by a defendant who is represented by counsel.” Robinson v. State, 240 S.W.3d 919,
922 (Tex.Crim.App. 2007). Even if Marshall’s habeas corpus was presented to the trial court, the
trial court judge had no obligation to consider or rule on it. See id. (a trial court’s refusal to rule
on a pro se motion is not subject to review); In re Hernandez, No. 08-21-00189-CR, 2021 WL
5027791, at *1 (Tex.App.--El Paso Oct. 29, 2021, orig. proceeding).
Marshall acknowledges the hybrid representation issue but claims that the Texas Code of
Criminal Procedure expressly allows both he and counsel to participate in the defense of a felony
charge. See TEX.CODE CRIM.PROC.ANN. art. 1.05 (“He shall have the right of being heard by
himself, or counsel, or both;”). But the Texas Court of Criminal Appeals has already held that
the Texas Constitutional Provision upon which article 1.05 is based, TEX.CONST. art. I, § 10, was
not intended to mandate a right to hybrid representation in criminal cases. Landers v. State, 550
S.W.2d 272, 277 (Tex.Crim.App. 1977) (op. on reh’g).
Here, likewise, Marshall is not entitled to hybrid representation in this Court, and his pro
se petition for writ of mandamus must be disregarded. See Ex parte Bohannan, 350 S.W.3d 116,
116 n.1 (Tex.Crim.App. 2011) (where habeas applicant was represented by counsel, court must
disregard and take no action on pro se filings); In re Hall, No. 05-21-00641-CV, 2021 WL 4304569at *2 (Tex.App.--Dallas Sept. 22, 2021, orig. proceeding) (mem. op., not designated for
publication); In re Tarkington, No. 03-21-00194-CV, 2021 WL 1742243 at *1 (Tex.App. --Austin
May 4, 2021)(mem. op., not designated for publication); In re Roberts, No. 01-21-00561-CR,
No. 01-21-00562-CR, 2021 WL 5056621 at *1 (Tex.App.--Houston [1st Dist.] Nov. 2, 2021, orig.
proceeding) (per curiam) (mem. op., not designated for publication).
2
Accordingly, we deny Marshall’s pro se petition for writ of mandamus for lack of
jurisdiction. See TEX.R.APP.P. 52.8(a).
JEFF ALLEY, Justice
February 4, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
3