Opinion
01-22-00943-CR 01-22-00944-CR
01-10-2023
IN RE RICHARD A. DUNSMORE, Relator
Do not publish. Tex.R.App.P. 47.2(b).
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
PER CURIAM
Relator, Richard A. Dunsmore, incarcerated and proceeding pro se, has filed a petition for a writ of mandamus asserting that the trial court abused its discretion by denying his motions to recuse the Honorable Lamar McCorkle, Visiting Judge of the 412th District Court of Brazoria County, in trial court criminal case numbers 56909 and 56910. In his petition, Dunsmore states that the "mandamus relief [s]ought is simple," he requests that this Court "[d]irect the Honorable Lamar McCorkle to remove [h]imself [f]rom Brazoia County [c]ases 84023-CV [and] Brazoria County [c]ases 56909 [and] 56910, and [h]ave an [o]ut of Administrative Judicial Region Judge [a]ssigned to [a]ll [three] [c]ases."
On October 8, 2010, Dunsmore was convicted of the offenses of sexual assault and attempted sexual assault in trial court case numbers 56909 and 56910. See Tex. Penal Code Ann. §§ 15.01, 22.011. On April 12, 2012, this Court dismissed Dunsmore's untimely appeals of his 2010 convictions for lack of jurisdiction. See Dunsmore v. State, Nos. 01-10-00981-CR, 01-10-00982-CR, 2012 WL 1249418, at *1 (Tex. App.-Houston [1st Dist.] April 12, 2012, pet. ref d) (mem. op., not designated for publication).
Although Dunsmore's petition for writ of mandamus challenges the trial court's denial of his motions to recuse Judge McCorkle in trial court criminal case numbers 56909 and 56910 and trial court civil case number 84023-CV, this opinion only addresses Dunsmore's challenges to the trial court's ruling in connection with the criminal cases. Dunsmore's challenge to the trial court's denial of the motion to recuse Judge McCorkle in trial court civil case number 84023-CV was docketed by the Clerk of this Court as appellate case number 01-22-00952-CV and is addressed in a separate opinion.
Dunsmore previously attempted to appeal the trial court's order denying his motions to recuse Judge McCorkle by filing notices of appeal, which were assigned appellate case numbers 01-22-00684-CR and 01-22-00688-CR by the Clerk of this Court. These appeals were dismissed for lack of jurisdiction because the orders denying his motion to recuse were not appealable orders. See Dunsmore v. State, 01-22-00684-CR, 01-22-00688-CR, 2022 WL 1741958, at * 1 (Tex. App.- Houston [1st Dist.] Dec. 6, 2022, no pet. h.) (mem. op., not designated for publication) ("An order denying a motion to recuse is not a final, appealable order and may only be reviewed in an appeal from a final judgment."); see also Tex. R. Civ. P. 18a(j)(1)(A) ("An order denying a motion to recuse may be reviewed only for abuse of discretion on appeal from the final judgment.").
We deny Dunsmore's petitions for writ of mandamus.
The underlying cases are The State of Texas v. Richard A. Dunsmore, Cause Nos. 56909 and 56910, in the 412th District Court of Brazoria County, Texas, the Honorable Lamar McCorkle presiding.
"Mandamus is intended to be an extraordinary remedy, available only in limited circumstances." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To be entitled to mandamus relief, a relator has the duty to establish that the trial court clearly abused its discretion or failed to perform a ministerial duty, and that relator lacks an adequate remedy by appeal. Id.
With respect to motions to recuse specifically, the general rule is that courts "should not grant mandamus relief to the complaining party on a recusal motion," because the party "has an adequate remedy at law by way of an appeal from the final judgment." See Woodard v. Eighth Court of Appeals, 991 S.W.2d 795, 796-97 (Tex. Crim. App. 1998). While there are limited circumstances in which mandamus relief would be appropriate, such circumstances do not exist here. See De Leon v. Aguilar, 127 S.W.3d 1, 6 (Tex. Crim. App. 2004) (concluding mandamus relief appropriate where trial court judge failed to perform ministerial duty to "either recuse himself or refer the motion for another judge to decide" after motion to recuse timely filed pursuant to Texas Rule of Civil Procedure 18a).
Further, the rules governing motions to recuse expressly set out appellate authority to review a trial court's ruling. Pursuant to those rules, where a motion to recuse is denied, appellate review is limited and "may be reviewed only for abuse of discretion on appeal from a final judgment." See Tex. R. Civ. P. 18a(j)(1)(a).
Here, Dunsmore has sought mandamus relief that this Court lacks the authority to grant. As noted above, appellate review from the denial of a motion to recuse a trial court judge may generally only be taken on appeal from a final judgment. The trial court's final judgments convicting Dunsmore of the underlying criminal offenses were entered on October 8, 2010, and, notably, Dunsmore did not timely appeal from those judgments. See Dunsmore v. State, Nos. 01-10-00981-CR, 01-10-00982-CR, 2012 WL 1249418, at *1 (Tex. App.-Houston [1st Dist.] April 12, 2012, pet. ref d) (mem. op., not designated for publication). Further, the mandamus record provided by Dunsmore reflects that Judge McCorkle ruled on Dunsmore's motion to recuse, and thereby did not fail to perform his ministerial duty to act. Accordingly, mandamus relief is not appropriate. See De Leon, 127 S.W.3d at 6; see also Tex. R. Civ. P. 18a(j)(1)(a).
For these reasons, Dunsmore's petition for writ of mandamus is denied. Any pending motions are dismissed as moot.