in Re Erica Haywood ( 2009 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 2, 2009

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 2, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00210-CR

NO. 14-09-00211-CR

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IN RE ERICA HAYWOOD, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

Relator Erica Haywood filed a petition for writ of mandamus in this Court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the presiding judge of the 208th District Court of Harris County to grant a jury trial in her pending criminal cases, appoint her new counsel, appoint a private investigator, dismiss the cases with prejudice, invalidate the indictments, allow her access to the evidence and grand jury records, and allow her access to mental health services.

The Texas Court of Criminal Appeals has consistently held that mandamus relief is available only when the relator can establish the following: (1) under the relevant law and facts, she has a clear right to the relief sought, i.e., the act she seeks to compel is Aministerial;@ and (2) no other adequate remedy at law is available.  State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001).  An act is ministerial if the law clearly spells out the duty to be performed with such certainty that nothing is left to the exercise of discretion or judgment.  Tex. Dep=t of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981).

Relator has the burden of providing this Court with a record sufficient to establish her right to mandamus relief.  See Tex. R. App. P. 52.7(a) (requiring relator to file a certified or sworn copy of every document that is material to the relator=s claim for relief);  see also Tex. R. App. P. 52.3(k)(l)(A);  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).  While a trial court must consider and rule on a properly filed motion brought to the court=s attention within a reasonable amount of time, see In re Bonds, 57 S.W.3d 456, 457 (Tex. App.CSan Antonio 2001, orig. proceeding), relator must establish that the trial court has failed to do so.

Here, relator has not provided this Court with a sworn or file-stamped copy of any motions filed with the trial court or any other documents to support her claim for relief.  Nor has relator established that the trial court has been made aware of any motions or has expressly refused to rule on them.  See In re Marshall, No. 14‑08‑00745‑CV, 2008 WL 3931397 (Tex. App.CHouston [14th Dist.] Aug. 21, 2008, orig. proceeding) (mem. op.).

Relator has not established her entitlement to extraordinary relief..  Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.