In Re Delmore W. Moffett v. the State of Texas

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
July 13, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00432-CR
IN RE DELMORE W. MOFFETT, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
177th District Court
Harris County, Texas
Trial Court Cause No. 1801087
MEMORANDUM OPINION
On June 20, 2023, relator Delmore W. Moffett filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this Court to compel the Honorable Robert
Johnson, presiding judge of the 177th District Court of Harris County, to remove
defense counsel and “allow him to proceed pro se with stand by counsel.”
Relator is represented by counsel. A defendant is not entitled to hybrid
representation, and, as a consequence, a trial court is free to disregard any pro se
motions presented by a defendant who is represented by counsel. Jenkins v. State,
592 S.W.3d 894, 902 n.47 (Tex. Crim. App. 2018). Moreover, in the absence of a
right to hybrid representation, relator’s pro se petition for writ of mandamus
presents nothing for this Court’s review. See Patrick v. State, 906 S.W.2d 481,
498 (Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d 423, 425 n.1 (Tex. Crim.
App. 1991).
Additionally, to be entitled to mandamus relief, the relator must show that
(1) he has no adequate remedy at law to redress his alleged harm, and (2) what he
seeks to compel is a ministerial act, not a discretionary act. In re Powell, 516
S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a
ministerial duty to consider and rule on motions properly filed and pending before
it, and mandamus may issue to compel the trial court to act. In re Henry, 525
S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). For
relator to be entitled to mandamus relief, the record must show (1) the motion was
filed and brought to the attention of the respondent-judge for a ruling, and (2) the
respondent-judge has not ruled on the motion within a reasonable time after the
motion was submitted to the court for a ruling or after the party requested a ruling.
In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding).
As the party seeking mandamus relief, relator has the burden of providing
this Court with a sufficient record to establish his right to mandamus relief. Id. at
73–74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must
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file with the mandamus 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”). To establish that the motion was filed, the relator must provide
either a file-stamped copy of the motion or other proof that the motion in fact was
filed and is pending before the trial court. Gomez, 602 S.W.3d at 74. Merely filing
a motion with a court clerk does not show that the motion was brought to the trial
court’s attention for a ruling because the clerk’s knowledge is not imputed to the
trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.]
2020, orig. proceeding).
Relator has not provided this Court with any documents filed in the
underlying proceeding. There is no mandamus record to demonstrate that a motion
to remove counsel and allow relator “to proceed pro se with new stand-by counsel”
is pending in the trial court. Similarly, there is no record that relator has brought a
pending motion to the attention of the respondent-judge for a ruling. Mere filing is
insufficient because the clerk’s knowledge is not imputed to the trial judge. See
Ramos, 598 S.W.3d at 473. The respondent-judge is not required to consider a
motion that has not been called to the trial court’s attention by proper means. See
Henry, 525 S.W.3d at 382. Even if relator showed that his motion is properly
pending in the trial court and the trial court was made aware of it, relator has not
shown that it has been pending for an unreasonable period of time. See Gomez,
602 S.W.3d at 73.
Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
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PER CURIAM
Panel consists of Justices Jewell, Hassan, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
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