in Re John S. Young ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

In re John S. Young

No. 11-01-00397-CR B Original Proceeding

Relator seeks a writ of mandamus directing the 118th District Court to vacate its order requiring relator to represent John Ross Cansino in the State of Texas vs. John Ross Cansino, Trial Court Cause No. 10, 436.  Relator contends that the order requires him to represent Cansino without any reimbursement.  We agree and conditionally grant the application for writ of mandamus.

The record reflects that Cansino was first indicted in Trial Court Cause No. 10,414 for the murder of Julian Cansino by inflicting blunt trauma.  Cansino retained relator to represent him in Cause No. 10,414.  The State filed a motion to amend the indictment in Cause No. 10,414 to add the mens rea that Cansino Awith the intent to cause serious bodily injury or death did commit an act clearly dangerous to human life.@  The trial court denied the motion to amend, and the State dismissed the indictment in Cause No. 10,414.  The State then re-indicted Cansino in Trial Court Cause No. 10,436 for the capital murder of Julian Cansino, a child less than 6 years of age.^[1]

 At the arraignment on the capital murder indictment in Cause No. 10,436, relator testified that, when the murder indictment was dismissed, he explained to Cansino and Cansino=s family that the agreement for representation was complete and that, if they desired relator to represent Cansino in the new case, relator would discuss the matter once the fees from the first indictment were paid.  Cansino testified that he would like relator to represent him in the capital murder charge, that relator made it clear to him that relator Adid all his pay and fee on the first case that was dismissed,@ that he felt like he had hired relator for the Awhole trouble,@ and that there was a paragraph in the representation agreement that the agreement did not cover any retrials, re-indictments, appeals, or anything other than Cause No. 10,414.  Cansino further testified that, while he had some money, he did not have the money to hire an attorney for a capital murder trial or to hire experts. Cansino had $3,000 available. Neither Cansino nor his family had discussed with relator the possibility of relator representing Cansino in the capital murder charge.  The trial court held that relator was Astill in the case.@ 

Relator contends that, when the indictment for murder was dismissed, his retained representation of Cansino in Cause No. 10,414 terminated and that the agreement between Cansino and relator did not involve any future representation in any possible new indictments.  Therefore, the trial court=s order that he remain counsel of record required relator to represent Cansino without any provision for compensation.           

Mandamus is an extraordinary remedy and will not issue by an intermediate appellate court unless the relator establishes that there is no adequate remedy at law and that the act complained of is ministerial not discretionary in nature. State ex rel. Hill v. Court of Appeals for the Fifth District,  34 S.W.3d 924, 927 (Tex.Cr.App.2001)(original proceeding); Dickens v. Court of Appeals for the Second Supreme Judicial District of Texas, 727 S.W.2d 542, 548 (Tex.Cr.App.1987)(original proceeding); In re State, 50 S.W.3d 100, 102 (Tex.App. - El Paso 2001)(original proceeding).  Mandamus is appropriate where the relief sought is A>clear and undisputable= such that its merits are >beyond dispute=@ and there is nothing left to the exercise of discretion or judgment. State ex rel. Hill v. Court of Appeals for the Fifth District, supra at 927-28; see Stearnes v. Clinton, 780 S.W.2d 216, 225 (Tex.Cr.App.1989)(original proceeding); Smith v. Flack, 728 S.W.2d 784, 792 (Tex.Cr.App.1987)(original proceeding).

The record reflects that it was undisputed that the representation agreement between relator and Cansino was for the murder indictment, that Cansino had not discussed with relator the possibilities of retaining relator to represent him in the capital murder case, that relator was not retained on the capital murder case, and that relator was not appointed to represent Cansino on the capital murder case. We agree with relator=s contention that the trial court=s order that the relator was Astill in the case@ was tantamount to requiring relator to represent Cansino without any enumeration.   Mandamus is an appropriate remedy.^[2]

The application for writ of mandamus is conditionally granted.  In the event that the trial court does not rescind its order that relator is Astill@ counsel of record for Cansino, the writ shall issue.  The clerk of the trial court is directed to forward to this court a copy of the trial court=s order.  In the event that the trial court determines that Cansino is indigent and appoints subsequent counsel or determines that Cansino is not indigent and has retained counsel, the district clerk is directed to forward those findings to this court.   The district clerk is directed to forward these documents to this court on or before February 15, 2002.

PER CURIAM

January 31, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]The record reflects that the State is not seeking the death penalty.

^[2]  See Buntion v. Harmon, 827 S.W.2d  945 (Tex.Cr.App.1992)(original proceeding), where the court held that mandamus was the appropriate remedy when the trial court had replaced court-appointed counsel.