in Re Davin Paul Cole ( 2021 )

Opinion issued January 14, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00785-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 his indictment to be
“[d]ismissed with [p]rejudice for [v]iolating the [p]robable [c]ause [p]rovisions of
the 4th Amendment and [Texas Constitution] Article 1 § 9 and Lomas v. Harris
County.”1 Relator also requests “a [m]istrial and [f]inding of [p]rosecutorial and
1
Relator states that he refers to the Lomas v. Harris County consent decree of 2017.
He does not attach the consent decree or include a citation for it.
[j]udicial [m]isconduct”; a release from confinement; and an order “showing [n]o
[p]robable [c]ause and a [c]lear [v]iolation of the 4th Amendment and Article 1
§ 9.” He seeks mandamus relief against respondent, the Honorable Abigail
Anastasio, Harris County District Attorney Kim Ogg, and three assistant Harris
County district attorneys, asserting that they violated their ministerial duties “to not
violate federal law, state law, the Texas Constitution and the Constitution of the
United States of America, specifically the Fourth Amendment . . . and the
Fourteenth Amendment” and to honor the Lomas v. Harris County consent decree.
We deny the petition for writ of mandamus.2
First, 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).
Second, there is no showing that the trial court refused to rule on any motion
from which relator seeks relief here.3 See O’Connor v. First Court of Appeals, 837
2
The underlying case is The 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.
3
Relator states that he and his previous attorney filed “numerous written motions”
seeking disclosure of materials to which relator is entitled under Brady v.
Maryland, 373 U.S. 83 (1963). See In re State of Texas, 605 S.W.3d 721, 725
(Tex. App.—Houston [1st Dist.] 2020, orig. proceeding) (“The United States
Supreme Court in Brady held that the suppression by the prosecution of evidence
favorable to the accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” (internal quotations omitted)). Relator does not assert that the
2
S.W.2d 94, 97 (Tex. 1992) (to obtain mandamus relief, relator must show
respondent had legal duty to perform non-discretionary act, relator made demand
for performance, and respondent refused). Relator states that at a November 3,
2020 hearing, he filed a “Motion to Dismiss Indictment Under Lomas v. Harris
County and the Fourth Amendment – No Probable Cause Affidavit[s] Sworn to
Under Oath or Affirmation,” the motion was file-stamped, and he “verbally
[m]otioned the [trial] [c]ourt” to dismiss the indictment. The motion is not
included in the mandamus record.4
Third, the appendix attached to relator’s 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 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
trial court failed to rule on any of the “numerous written motions” but complains,
rather, that the Harris County district attorney’s office did not produce all the
materials to which he is entitled.
4
Even assuming that relator’s November 3, 2020 motion was properly filed and the
trial court has yet to rule on it, mandamus relief is still not necessarily warranted.
See In re Dong Sheng Huang, 491 S.W.3d 383, 385 (Tex. App.—Houston [1st
Dist.] 2016, orig. proceeding) (“[T]he party demanding a ruling must set its
request either for submission or a hearing.”); see also In re The Shredder Co.,
L.L.C., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, no pet.) (“A trial court
commits a clear abuse of discretion when it refuses to rule on a pending motion
within a reasonable amount of time. What is considered a reasonable amount of
time is dependent upon the circumstances of each case.” (internal citations
omitted)).
3
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”). The
documents attached to relator’s petition are unsworn and do not include relator’s
November 3, 2020 motion or reflect a request by relator for a ruling on his
November 3, 2020 motion or any other motion.5 In the absence of an adequate
appendix and 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.”).
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,
5
Relator’s appendix is comprised of four Houston Chronicle newspaper articles; a
motion and order for admission pro hac vice for a Washington D.C. attorney in
Cause No. 4:19-cv-00226 in the Southern District of Texas; an order signed in
Civil Action No. H-19-226 in the Southern District of Texas; an unidentified
February 27, 2020 Houston Police Department administrative document
(identified by relator as an offense report) that purportedly pertains to relator’s
arrest and contains unidentified handwritten notes; relator’s indictment; real party
in interest’s notice of intent to use expert testimony; real party in interest’s motion
to disclose experts; an order in Civil Action No. 4:20-cv-2490 in the Southern
District of Texas granting relator’s motion to proceed in forma pauperis; a July 27,
2020 letter to relator from attorney Thomas J. Lewis advising him that the trial
court ordered a psychiatric evaluation in the underling litigation; a March 10, 2020
letter to relator from attorney Thomas J. Lewis in response to correspondence
from relator; an order signed by the prosecutor and defense counsel appointing
Thomas J. Lewis as relator’s counsel; and an April 3, 2020 letter from Thomas J.
Lewis to relator regarding discovery.
4
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 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)(1).
Accordingly, we deny relator’s petition for writ of mandamus. All pending
motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Hightower, Countiss, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
5