in Re Michael Richard Barrera ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00533-CR
In re Michael Richard Barrera
FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 21-1836-K277, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING
MEMORANDUM OPINION
Relator Michael Richard Barrera filed a pro se notice of appeal that we construe
as a petition for writ of mandamus, in which he seeks to “appeal” the trial court’s failure to rule
on his pro se pretrial application for writ of habeas corpus. See Ex parte Caldwell, 58 S.W.3d 127,
130 (Tex. Crim. App. 2000) (observing that it is substance of filing, not title, that governs); In re
Smith, 366 S.W.3d 268, 270 (Tex. App.—Tyler 2012, no pet.) (construing motion for court of
inquiry as request for habeas relief); In re Richardson, No. 04-22-00065-CR, 2022 WL 465405,
at *1 (Tex. App.—San Antonio Feb. 16, 2022, no pet.) (mem. op., not designated for
publication) (construing notice of appeal as petition for writ of mandamus). The record shows
that Barrera retained counsel in the underlying proceeding, and nothing in the record suggests
that his counsel has since withdrawn or that the trial court has authorized hybrid representation. 1
Barrera has no right to hybrid representation. See Robinson v. State,
240 S.W.3d 919, 922 (Tex. Crim. App. 2007); In re West, 419 S.W.3d 312, 312 (Tex. App.—
1 See Robinson v. State, 240 S.W.3d 919, 921 (Tex. Crim. App. 2007) (defining “hybrid
representation” as “representation partly by counsel and partly by self”).
Amarillo 2009, no pet.) (“Relator is not entitled to hybrid representation here or in the trial
court.”). Because his pro se petition for writ of mandamus relates directly to a criminal
proceeding in which he is represented by counsel, the petition presents nothing for our
consideration. 2 See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995); West,
419 S.W.3d at 312–13; In re Flanigan, 578 S.W.3d 634, 637 (Tex. App.—Houston [14th Dist.]
2019, no pet.); In re Pope, No. 04-19-00108-CR, 2019 WL 1050431, at *1 (Tex. App.—San
Antonio Mar. 6, 2019, no pet.) (per curiam) (mem. op., not designated for publication); see also
Robinson, 240 S.W.3d at 922 (concluding that “a trial court is free to disregard any pro se
motions presented by a defendant who is represented by counsel”). Barrera has not shown that
he is no longer represented by counsel. Accordingly, his pro se petition for writ of mandamus
is dismissed.
__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Triana, Smith
Filed: October 5, 2022
Do Not Publish
2 “[E]ven when an appeal is pending, we have no authority to order a trial judge to rule
on pretrial motions filed by a defendant attempting to act pro se when the defendant is
represented by counsel.” In re Heaney, No. 03-16-00491-CV, 2016 WL 4272125, at *1 (Tex.
App.—Austin Aug. 9, 2016, no pet.) (mem. op.).
2