in Re Devin Paul Cole ( 2021 )

Opinion issued January 26, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00807-CR
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IN RE DEVIN PAUL COLE, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Devin Paul Cole, incarcerated and acting pro se, has filed a petition
for writ of mandamus, requesting that this Court order respondent, the Honorable
Abigail Anastasio, to “enter a [f]inding of [p]rosecutorial [m]isconduct” against
three Harris County assistant district attorneys, to declare a mistrial, “to [o]rder
[p]rosecutors to [p]roduce and [d]isclose the [g]rand [j]ury [t]ranscripts” and other
materials, to “[d]ismiss th[e] [p]rosecution and [i]ndictment with [p]rejudice,” and
to “enter[] a [d]eclaration of [a]ctual [i]nnocence and [o]rder[] [r]elator[’]s release
from the Harris County Jail—[i]mmediately.” Relator also requests that this Court
direct Harris County District Attorney Kim Ogg and two assistant Harris County
district attorneys to “[d]ismiss th[e] [p]rosecution and [i]ndictment” and that the
Court “[i]ssue an [o]rder [d]eclaring a [m]istrial [d]ue to [p]rosecutorial
[m]isconduct” for the State’s purported withholding of the complainant’s alleged
criminal history and “[e]xculpatory – [i]mpeachment [e]vidence” from the Harris
County Grand Jury. Finally, relator requests that this Court issue an order
“[s]pecifically finding [that] he [h]as [b]een [d]enied a [f]air and [i]mpartial [t]rial
and a [f]inding of a [m]alicious [p]rosecution, [o]fficial [o]ppression and [a]buse of
[o]fficial [c]apacity.”
We deny the petition for writ of mandamus.1
First, we note that relator’s petition does not comply with the requirements
enumerated in the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.4;
52.3(a)–(d), (g), (h), (k); see also TEX. R. APP. P 52.7. Further, relator’s appendix,
attached to his petition for writ of mandamus, does not satisfy the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 52.3(k)(1) (requiring original
proceedings to be filed with appendix that contains “a certified or sworn copy of
1
The underlying case is State of Texas v. Devin Paul Cole, Cause No. 1666250,
pending in the 184th District Court of Harris County, Texas, the Honorable
Abigail Anastasio presiding.
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any order complained of, or any other document showing the matter complained
of”); TEX. R. APP. P. 52.7(a) (requiring relator to file with his petition “a certified
or sworn copy of every document that is material to the relator’s claim for relief
and that was filed in any underlying proceeding”). Most of the documents attached
to relator’s petition are unsworn, and there is no indication that relator filed, in the
trial court, the motions for which he now seeks mandamus relief. In the absence of
an adequate appendix and mandamus record, this Court cannot evaluate the merits
of relator’s petition. See In re McCreary, No. 12-15-00067-CR, 2015 WL
1395783, at *1 (Tex. App.—Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not
designated for publication) (“Without an appendix and a record, we are unable to
determine that [r]elator is entitled to mandamus relief.”).
Second, there is no showing that the trial court refused to rule on any motion
or request for the relief that relator seeks in this Court. See O’Connor v. First
Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (to obtain mandamus relief,
relator must show trial court had legal duty to perform non-discretionary act,
relator made demand for performance, and trial court refused). Although relator’s
appendix, attached to his petition for writ of mandamus, includes a “[m]otion to
[d]ismiss [p]rosecution and [i]ndictment [d]ue to [s]erious [c]redibility [i]ssues
with [c]omplaint” and a “[m]otion and [a]pplication for [s]ubpoena to [p]roduce
[g]rand [j]ury [t]ranscript[s], [g]rand [j]ury [m]inute[s], [m]aterial[s], [a]udio and
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[v]ideo [r]ecording[s] and the [n]ame[s] and [i]nformation” of all the grand jurors
involved in his case, there is no indication that either motion was filed or brought
to the trial court’s attention. The appendix also includes a letter that relator sent to
his attorney. The letter references a motion to compel an in-camera hearing to
review evidence in the State’s possession, but the motion itself is not included in
the appendix attached to relator’s petition. And there is no indication that such a
motion was filed or brought to the trial court’s attention. This Court cannot order
the trial court to rule on any of the aforementioned motions, and this Court does
not have the authority to declare sua sponte a mistrial due to prosecutorial
misconduct or to issue an order finding that relator was denied a fair trial or that
malicious prosecution, official oppression, or abuse of official capacity occurred.
Finally, this Court lacks authority to issue a writ of mandamus against a
district attorney or assistant district attorneys. Garner v. Gately, 909 S.W.2d 61,
62 (Tex. App.—Waco 1995, orig. proceeding); see also In re Mays, No.
11-14-00310-CR, 2014 WL 6603371, at *1 (Tex. App.—Eastland Nov. 20, 2014,
orig. proceeding) (mem. op., not designated for publication). This Court only has
jurisdiction to issue a writ of mandamus against “a judge of a district or county
court in the court of appeals district.” TEX. GOV’T CODE ANN. § 22.221(b).
Accordingly, we deny relator’s petition for writ of mandamus. All pending
motions are dismissed as moot.
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PER CURIAM
Panel consists of Justices Hightower, Countiss, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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