Opinion
14-21-00628-CR
11-18-2021
IN RE SAVON RONSHEY CALDWELL, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 10th District Court Galveston County, Texas Trial Court Cause No. 19CR0024
Panel consists of Justices Wise, Spain, and Hassan
MEMORANDUM MAJORITY OPINION
Ken Wise, Justice
On November 2, 2021, relator Savon Ronshey Caldwell 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 Kerry Neves, presiding judge of the 10th District Court of Galveston County, to grant relator an examining trial. See Tex. Code Crim. Proc. art. 16.01. 1
In his petition, relator asserts "has a right to an examining trial prior to the issuance of an indictment." Petitioner states that the "Grand Jurors for the County of Galveston . . . filed an indictment . . . on the 21st day of February 2019," which relator asserts was before he had received an examining trial. Relator contends this violated his constitutional rights. A defendant's right to an examining trial is ended by the return of an indictment. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990); see also In re Richardson, No. 14-04-00713, 2004 WL 1797589, at *1 (Tex. App.-Houston [14th Dist.] Aug. 12, 2004, orig. proceeding). "Due process considerations are not implicated since the primary purpose for the examining trial, a determination of probable cause, is at least as timely accomplished by presenting evidence directly to the grand jury." Salinas, 784 S.W.2d at 427.
Moreover, as set forth in his petition for writ of mandamus, relator is represented by counsel. A defendant in a criminal law matter is not entitled to hybrid representation. Jenkins v. State, 592 S.W.3d 894, 902 n.47 (Tex. Crim. App. 2018). 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).
Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus. 2
MEMORANDUM DISSENTING OPINION
Charles A. Spain, Justice
I dissent because relator does not comply with the following mandatory provisions of Rule 52 regarding a proper original-proceeding record: Tex.R.App.P. 52.3(j) (certification), (k)(1) (necessary contents of appendix); 52.7(a)(1) (sworn or certified copies), (a)(2) (properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or statement that no testimony was adduced in connection with the 1 matter complained); see also Tex. Civ. Prac. &Rem. Code Ann. § 132.001 (unsworn declarations).
Generally, I would give notice of the deficiencies with the record and allow relator an opportunity to cure, and if relator did not timely cure the deficiencies, then I would dismiss the petition for want of prosecution without reaching the merits. See In re Kholaif, 624 S.W.3d 228, 231 (order), mand. dism'd, 615 S.W.3d 369 (Tex. App.-Houston [14th Dist.] 2020) (orig. proceeding). Here, however, based on the arguments asserted, the deficiencies in relator's petition are incurable. Accordingly, I would dismiss the petition without allowing an opportunity to cure.
While I disagree with the disposition of this case, I applaud the court for deciding the case for reasons other than petitioner's purported noncompliance with judicially-created “extra rules” concerning presentment of motions by incarcerated persons. See In re Gomez, 602 S.W.3d 71, 74-75 (Tex. App.-Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring); In re Pete, 589 S.W.3d 320, 322-324 (Tex. App.-Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring).
I respectfully dissent.