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In re Daniels

Court of Appeals of Texas, Fourteenth District
Nov 16, 2021
No. 14-21-00607-CR (Tex. App. Nov. 16, 2021)

Opinion

14-21-00608-CR

11-16-2021

IN RE CLINTON LEWIS DANIELS II, Relator


Do Not Publish - Tex.R.App.P. 47.2(b).

ORIGINAL PROCEEDING WRIT OF MANDAMUS 405TH DISTRICT COURT GALVESTON COUNTY, TEXAS TRIAL COURT CAUSE NO. 20CR1464

Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).

MEMORANDUM MAJORITY OPINION

PER CURIAM

On October 25, 2021, relator Clinton Lewis Daniels II 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 Jared Robinson, presiding judge of the 405th District Court of Galveston County, to grant an examining trial. See Tex. Code Crim. Proc. art. 16.01. 1

Relator complains that the trial court has taken no action on his request for an examining trial. He contends that his constitutional rights to due process and access to the courts have been violated. A felony indictment was filed on May 26, 2020. 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.

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 matter 1 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, 7475 (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. 2


Summaries of

In re Daniels

Court of Appeals of Texas, Fourteenth District
Nov 16, 2021
No. 14-21-00607-CR (Tex. App. Nov. 16, 2021)
Case details for

In re Daniels

Case Details

Full title:IN RE CLINTON LEWIS DANIELS II, Relator

Court:Court of Appeals of Texas, Fourteenth District

Date published: Nov 16, 2021

Citations

No. 14-21-00607-CR (Tex. App. Nov. 16, 2021)