Craig Bernard Middleton v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00054-CR ______________________________



CRAIG BERNARD MIDDLETON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law Gregg County, Texas Trial Court No. 2007-0715

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Craig Bernard Middleton, appellant, has filed with this Court a motion to dismiss his appeal. ⁽¹⁾ The motion is signed by Middleton and his counsel in compliance with Rule 42.2(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.2(a). As authorized by Rule 42.2, we grant the motion. See Tex. R. App. P. 42.2.

Accordingly, we dismiss the appeal.

Bailey C. Moseley

Justice

Date Submitted: May 15, 2008

Date Decided: May 16, 2008

Do Not Publish

1. This appeal was transferred to this Court by order of the Texas Supreme Court pursuant to the docket equalization program.

rm Lloyds, Inc., 170 S.W.3d 629, 632 (Tex. App.--El Paso 2005, orig. proceeding). "The relator must therefore establish that the trial court could reasonably have reached only one decision." Id. This Court will therefore grant mandamus relief in this case if Hinds can demonstrate that the act sought to be compelled is purely "ministerial" and that he has no other adequate legal remedy. See State ex rel. Rosenthal, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). A remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842.

(2) Hinds Is Not Entitled to Relief

The record brought forth by Hinds does not remotely suggest Hinds has previously asked the trial court to issue a "certificate of appealability" in this case. ⁽¹⁾ Accordingly, we cannot say the record before us affirmatively demonstrates the trial court failed to carry out a ministerial duty.

We deny Hinds' petition for writ of mandamus.

Jack Carter

Justice

Date Submitted: March 4, 2008

Date Decided: March 5, 2008

1. We are uncertain whether Hinds' use of the term "certificate of appealability" in his petition for writ of mandamus refers to a "certification of right of appeal" under the Texas Rules of Appellate Procedure or a "certificate of appealability" under the Federal Rules of Appellate Procedure. Compare Tex. R. App. P. 25.2(a)(2) (trial court's certification of defendant's right of appeal) with Fed. R. App. P. 22(b)(1). Even if Hinds is requesting action under the Texas rules of procedure, he has not satisfied his burden on mandamus to bring forth a record showing the trial court failed to act on a previous request for such instrument.