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in Re Jonathan Abram ( 2020 )


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  • Opinion issued January 14, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00860-CR
———————————
IN RE JONATHAN ABRAM, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Jonathan Abram, seeks mandamus relief in connection with the
appointment of new counsel in the trial court.1
Discussion
A relator in a mandamus proceeding must show that (1) he has no adequate
remedy at law and (2) what he seeks to compel is a ministerial act that does not
1
The underlying case is The State of Texas v. Jonathan Abram, cause number
1572078, pending in the 178th District Court of Harris County, Texas, the
Honorable Kelli Johnson presiding.
involve a discretionary or judicial decision. In re Lozano, No. 14-12-00049,
    2012 WL 274076
    , at *1 (Tex. App.—Houston [14th Dist.] Jan. 31, 2012, orig.
proceeding) (per curiam) (citing State ex rel. Young v. Sixth Judicial Dist. Court of
Appeals,
    236 S.W.3d 207
    , 210 (Tex. Crim. App. 2007) (orig. proceeding)).
“Consideration of a request or motion that is properly filed and before the court is a
ministerial act.”
    Id. (citing State 
    ex rel. Curry v. Gray,
    726 S.W.2d 125
    , 128 (Tex.
Crim. App. 1987) (orig. proceeding)).
To receive mandamus relief, a relator must show that “the trial court
received, was aware of, and asked to rule on the motion.”
    Id. (citing In 
    re
Villarreal,
    96 S.W.3d 708
    , 710 (Tex. App.—Amarillo 2003, orig. proceeding)).
Further, the petition for mandamus must be accompanied with an appendix that
includes, among other things, “a certified or sworn copy of the document showing
the matter complained of.” TEX. R. APP. P. 52.3(k);
    Villarreal, 96 S.W.3d at 710 
    (identifying four mandamus requirements: court’s legal duty to perform non-
discretionary act, asking of court to perform act, failure of court to do so, and
inclusion of appendix with petition).
Relator has not shown that he moved for relief in the trial court or that the
trial court refused to rule on his motion.2 Moreover, relator has not shown he has
2
Even if the court had received such a request, it would have no duty to rule on it.
“[A] trial court has no duty to search for counsel agreeable to an indigent
defendant.” In re Aitch, No. 01-03-01185-CR,
    2003 WL 22862682
    , at *1 (Tex.
2
no adequate remedy by appeal. “If relator is contending that his appointed counsel
is rendering ineffective assistance, trial counsel’s performance is a matter that may
be addressed on direct appeal if adequately supported by the record.” In re Aitch,
No. 01-03-01185-CR,
    2003 WL 22862682
    , at *1 (Tex. App.—Houston [1st Dist.]
Dec. 4, 2003, orig. proceeding) (per curiam) (citing Bone v. State,
    77 S.W.3d 828 
    (Tex. Crim. App. 2002)). Relator also failed to attach an appendix to his petition.
We deny relator’s petition for writ of mandamus. All pending motions filed
in connection with this original proceeding are dismissed as moot.
PER CURIAM
Panel consists of Justices Lloyd, Kelly, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
App.—Houston [1st Dist.] Dec. 4, 2003, orig. proceeding) (citing Buntion v.
Harmon,
    827 S.W.2d 945
    , 949 (Tex. Crim. App. 1992); Solis v. State,
    792 S.W.2d 95
    , 100 (Tex. Crim. App. 1990)).
3