in Re Mark Lesher and Rhonda Lesher ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00111-CR

                                                ______________________________

                                                            IN RE: 

                             MARK LESHER AND RHONDA LESHER

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            A court of inquiry is a criminal proceeding authorized by and conducted according to Chapter 52 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. arts. 52.01–.09 (West 2006).  When a district judge, “acting in his capacity as magistrate, has probable cause to believe an offense has been committed against the laws of this state, he may request that the presiding judge of the administrative judicial district appoint a district judge to commence a Court of Inquiry.”  Tex. Code Crim. Proc. Ann. art. 52.01(a).

            In Red River County, Texas, Mark and Rhonda Lesher were indicted for the aggravated sexual assault of Shannon Renae Coyel.  A jury found the Leshers were not guilty of the offense.   The Leshers filed a petition for a court of inquiry, alleging that Coyel perjured herself by making several inconsistent and/or contradictory statements under oath in related grand jury and trial proceedings and that Red River County District Attorney, Val Varley, was either unwilling or unable to prosecute her.  The trial court denied the petition.

            The Leshers seek a writ of mandamus asserting that the trial court was required to find the existence of probable cause and grant their petition.  They request this Court to order the District Judge to find probable cause that Coyel committed a crime, substitute our own findings, and order a court of inquiry.^[1]  We find the trial court acted within its discretion to deny the petition for a court of inquiry and deny the petition.

            Mandamus is an extreme remedy, and to be entitled to mandamus relief, a petitioner must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal.  In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (orig. proceeding). The Texas statutes governing courts of inquiry, Chapter 52 of the Texas Code of Criminal Procedure, do not provide for an appeal from the judge’s determination, and a party may appeal only that which the Legislature has authorized.  Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992); In re Court of Inquiry, No. 06-10-00171-CR, 2010 WL 3894220 (Tex. App.—Texarkana Oct. 6, 2010, no pet. h.); McCarver v. State, 257 S.W.3d 512 (Tex. App.—Texarkana 2008, no pet.); In re Court of Inquiry, 148 S.W.3d 554, 555 (Tex. App.—El Paso 2004, no pet.).  Therefore, the Leshers have no adequate remedy by appeal.

            The statute allows a district judge to request the appointment of another judge to conduct a court of inquiry if the judge finds that probable cause exists to believe an offense has been committed.  Tex. Code Crim. Proc. Ann. art. 52.01(a).   Here, the petition included copies of Coyel’s testimony before the grand jury and the trial jury that show her testimony to be inconsistent.  The trial court denied the petition and found:  (1) that the petition was frivolous; (2) that a special prosecutor and the area’s Texas Ranger determined that no prosecution for perjury or aggravated perjury was justified; and (3) perjury charges against Coyel were pending in Collin County.   

            Before requesting a court of inquiry, a district judge must find that probable cause exists that an offense has been committed, but the law does not require that the judge request the inquiry; it is discretionary. Tex. Code Crim. Proc. Ann. art. 52.01(a) (“When a judge . . . has probable cause . . . he may request that the presiding judge . . . appoint a district judge to commence a Court of Inquiry.”) (emphasis added).  Accordingly, we find that the trial court did not abuse its discretion in denying the Leshers’ petition. 

            We deny the petition for writ of mandamus.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          June 23, 2011

Date Decided:             June 24, 2011

Do Not Publish

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^[1]The petition also states that the trial court erred in failing to recuse, but failed to brief the issue or provide any documentation that a motion to recuse was filed or acted on.  A point of error that is conclusory and cites no authority presents nothing for review, and we will not address it.  See Tex. R. App. P. 38.1; Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004); Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992).