No. 08-04-00171-CR
July 15, 2004. DO NOT PUBLISH.
An Original Proceeding in Mandamus
Before Panel No. 3, BARAJAS, C.J., LARSEN, and CHEW, JJ.
OPINION ON PETITION FOR WRIT OF MANDAMUS
SUSAN LARSEN, Justice.
This is an original proceeding in mandamus. Luis Fernando Rodriguez seeks a writ of mandamus requiring the Honorable Alex Gonzalez, Judge of the County Court at Law No. 4 of El Paso County, to grant him permission to appeal. For the reasons stated below, we deny relief.
STANDARD OF REVIEW
To establish an entitlement to mandamus relief, a relator must satisfy two requirements: (1) there must be no adequate remedy at law to redress his alleged harm; and (2) the relator must have a clear right to the relief sought. Buntion v. Harmon, 827 S.W.2d 945, 947-48 and n. 2 (Tex.Crim.App. 1992); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App. 1992). The second element has historically been stated in terms of requiring that the judicial conduct from which relief is sought be "ministerial" in nature. Buntion, 827 S.W.2d at 948 n. 2. An act is ministerial "where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment." Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App. 1981). A ministerial act is not implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. State ex rel. Hill v. Court of Appeals for Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App. 2001). However, a so-called "discretionary" act may become "ministerial" when the facts and circumstances dictate but one rational decision. Buntion, 827 S.W.2d at 948 n. 2. APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT
Rodriguez entered a plea of guilty to misdemeanor theft and was sentenced to time served pursuant to a plea bargain. Respondent subsequently denied Rodriguez's request for permission to appeal in order to challenge the voluntariness of his guilty plea. In this mandamus proceeding, Rodriguez requests that we order Judge Gonzalez to grant permission to appeal. A trial judge's decision whether to grant permission to appeal is not a ministerial act. Accordingly, we deny the relief requested in the petition for mandamus.