in Re Billy J. York, Relator ( 2005 )

NO. 07-05-0195-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 21, 2005 ______________________________

In re BILLY J. YORK,

Relator

_________________________________

FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

NO. 2004-596,105; HON. PAULA LANEHART, PRESIDING _______________________________

Memorandum Opinion in an Original Proceeding _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Pending before the court is the petition of Billy J. York for a writ of mandamus. Through it, he asks that we order the Honorable Paula Lanehart, County Court at Law No. 2, Lubbock County, to vacate an order abating the proceedings in Cause No. 2004,596-105 "until further order . . . ." We deny the petition.

A writ of mandamus is extraordinary relief and not available simply for the asking. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (stating that mandamus is an extraordinary remedy available only in limited circumstances). One seeking it must illustrate not only that he lacks an adequate remedy at law but also that the trial court clearly abused its discretion or violated a ministerial duty. In re Morris, 93 S.W.3d 388, 389 (Tex. App.-Amarillo 2002, orig. proceeding). Furthermore, seldom will a writ issue to supervise or correct incidental rulings of a trial judge. Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985). Included within the category of such rulings are pleas in abatement, among other things. Id. at 566-67; Texas Commerce Bank, N.A. v. Prohl, 824 S.W.2d 228, 229 (Tex. App.-San Antonio 1992, no writ) (holding that mandamus is "generally not available to control the incidental rulings of a trial court, such as ruling on pleas in abatement").

Here, York asks us to review the trial court's decision viz a plea in abatement. In doing so, he contends that the trial court abused its discretion. Yet, nothing is said about the other element that must be established to succeed, i.e. the element concerning the want of an adequate legal remedy. Nor does he explain what circumstances, if any, exist to remove his petition from the general rule prohibiting the issuance of mandamus relief to supervise or correct rulings on pleas of abatement. Given these deficiencies, we deny the petition.

Brian Quinn

Chief Justice

ufficient ground for revocation supports the trial court's order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980). Also, in a revocation proceeding, a plea of true standing alone is sufficient to support the trial court's revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979).

Appellate counsel presents one arguable issue in the Anders brief, to-wit: whether the trial court could have considered the extenuating circumstances facing appellant and imposed a lesser sentence. By his pro se letter brief, appellant concedes that he agreed to plead true to some of the allegations made by the State, but that he believed his trial counsel would present a defense on those allegations. He also attempts to explain the circumstances that lead to some of the violations of his conditions of community supervision. However, having reviewed a transcription of the hearing, we conclude that appellant's plea of true was freely and voluntarily given and thus, is sufficient to support the trial court's revocation order.  

We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Tex. R. App. P. 47.2(a).

2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).