in Re Mark Atchison ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-03-00562-CV

---

In re Mark Atchison

---

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

---

M E M O R A N D U M O P I N I O N

Relator Mark Atchison asks this Court to issue a writ of mandamus ordering the 368th Judicial District Court to vacate its order adjudicating him guilty of reckless injury to a child and return him to deferred adjudication community supervision. ⁽¹⁾ He frames the issue presented as follows: "Does a trial court abuse its discretion by granting a factually unsupported and unproven motion to proceed to adjudication, or by adjudicating guilt for minor infractions when other alternatives are available?"

To establish entitlement to mandamus relief, relator must demonstrate that the act sought to be compelled is purely ministerial, and that there is no adequate remedy at law. Hill v. Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). An act is ministerial if it does not involve the exercise of discretion. Id. The decision to proceed with an adjudication of guilt "is one of absolute discretion." Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979). Relator's very contention, that the district court abused its discretion by adjudicating him guilty, demonstrates that the disposition of a motion to adjudicate is not an appropriate subject for mandamus. Mandamus cannot serve as a substitute for the appeal that is prohibited by statute. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2003).

The petition for writ of mandamus is denied.

__________________________________________

David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Filed: November 13, 2003

1. We affirm Atchison's conviction in an opinion issued today. Atchison v. State, No. 03-03-00118-CR (Tex. App.--Austin Nov. 13, 2003, no pet. h.).