in Re Robert Martinez

i i i i i i
MEMORANDUM OPINION
No. 04-08-00400-CR
IN RE Robert MARTINEZ
Original Mandamus Proceeding1
PER CURIAM
Sitting: Catherine Stone, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 16, 2008
PETITION FOR WRIT OF MANDAMUS DENIED
Relator Robert Martinez has filed three petitions for a writ of mandamus complaining of
several matters in his pending criminal case. Relator complains his trial counsel, Phil Meyer, has
failed to perform certain acts related to his representation of relator in the underlying pending
criminal case. Relator also requests the issuance of writs of mandamus directing the San Antonio
Police Department to disclose certain information and directing the trial court to rule on relator’s
pro se motions. We deny the petitions.2
1
This proceeding arises out of Cause No. 2007-CR-10817, styled State of Texas v. Robert Martinez, pending
in the 175th Judicial District Court, Bexar County, Texas, the Honorable Mary Roman presiding.
2
One petition is entitled “Petition for a Writ of Habeas Corpus for Relief from Illegal Restraint;” however, we
construe it as a mandamus petition because it requests an order directing the trial court to grant relator’s pro se motion
for speedy trial and set a trial date.
04-08-00400-CR
First, this court’s mandamus authority is quite limited. In re Coronado, 980 S.W.2d 691, 692
(Tex. App.—San Antonio 1998, orig. proceeding). By statutory grant, this court has authority to
issue writs of mandamus against a district court judge or a county court judge in our court of appeals
district, and all writs necessary to enforce our jurisdiction. Id.; TEX. GOV’T CODE ANN.
§ 22.221(a),(b) (Vernon 2004). Thus, in order for trial counsel or the San Antonio Police Department
to fall under our mandamus authority, it must be shown the issuance of the writ is necessary to
enforce our jurisdiction. See Coronado, 980 S.W.2d at 692. Because the acts relator would have trial
counsel perform do not affect this court’s jurisdiction, we must deny relief as to relator’s trial
counsel.3 See id. Similarly, because the acts relator would have the police department perform do
not affect this court’s jurisdiction, we must deny relief as to the San Antonio Police Department. See
id.
Next, to obtain mandamus relief in a criminal matter, the relator must establish the act sought
to be compelled is ministerial rather than discretionary in nature, and there is no other adequate
remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987).
It is well established a criminal defendant does not have a right to hybrid representation. Robinson
v. State, 240 S.W.3d at 919, 921-22 (Tex. Crim. App. 2007); Scarbrough v. State, 777 S.W.2d 83,
92 (Tex. Crim. App. 1989). The decision to permit hybrid representation is within the trial court’s
discretion. Robinson, 240 S.W.3d at 922; Scarbrough, 777 S.W.2d at 92. Consequently, “a trial court
is free to disregard any pro se motions presented by a defendant who is represented by counsel.”
3
This is not to suggest relator is without recourse. Genuine concerns about the representation provided by
appointed counsel are properly directed to the trial court’s attention. See Malcolm v. State, 628 S.W.2d 790, 791 (Tex.
1982).
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04-08-00400-CR
Robinson, 240 S.W.3d at 922. Because the acts relator would have the trial judge perform are
discretionary and not ministerial in nature, we must deny relief as to the trial judge.
Finally, no leave is required to file a petition for a writ of mandamus in this court. TEX. R.
APP. P. 52 (specifying requirements for filing original proceedings in the courts of appeals).
Therefore, relator’s applications for leave to file the petitions are denied as moot.
Relator’s mandamus petitions are denied.
PER CURIAM
DO NOT PUBLISH
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