Opinion
No. 06-07-00014-CV
Submitted: February 8, 2007.
Decided: February 9, 2007.
Original Mandamus Proceeding.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
In his pro se petition for writ of mandamus and writ of prohibition, Allan Haggerty contends that Gary Young, county and district attorney for Lamar County, should be disqualified from prosecuting Haggerty since Young represented Haggerty on felony theft charges in 1994. Haggerty argues his recent conviction for felony driving while intoxicated (DWI) should be reversed and remanded for a new trial. In addition, Haggerty requests that we disqualify Young from prosecuting Haggerty on a pending possession of a controlled substance charge. Haggerty alleges he and Young discussed Haggerty's drug and alcohol consumption during Young's prior representation of Haggerty. According to Haggerty, one of the reasons Haggerty's trial counsel recommended that Haggerty not testify during the felony DWI trial was that Haggerty may have revealed damaging confidential information during Young's prior representation. In addition, Haggerty claims that Young could benefit from the confidential information obtained during the prior representation in prosecuting Haggerty on the pending charge of possession of a controlled substance.
We note Haggerty has previously filed a petition for writ of mandamus with similar arguments which were likewise denied. In re Haggerty, No. 06-06-00058-CV, 2006 Tex. App. LEXIS 5021 (Tex.App. — Texarkana June 13, 2006, orig. proceeding).
Haggerty's conviction for felony DWI is currently on appeal in this Court. See cause number 06-06-00022-CR.
Under the facts alleged by Haggerty, a writ of prohibition is not available. Because 1) Haggerty requests relief not cognizable on a petition for writ of mandamus, 2) has failed to show that the trial court has been requested to perform a ministerial act, and 3) has not provided a sufficient record, we deny the petition for writ of mandamus.
I. A Writ of Prohibition Is Not Available
A writ of prohibition normally directs a lower court to refrain from doing some act, usually connected with interfering with the jurisdiction of the superior court. Tilton v. Marshall, 925 S.W.2d 672, 676 n. 4 (Tex. 1996); In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex.App.-Tyler 2006, orig. proceeding); In re Alley, 1 S.W.3d 268, 269 (Tex.App.-Texarkana 1999, orig. proceeding). The writ operates in a way similar to an injunction issued by a superior court to control, limit, or prevent action in a court of inferior jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682-83 (Tex. 1989); Tex. Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 187 (Tex.App. — Texarkana 1993, orig. proceeding). A party seeking a writ of prohibition must show (1) there is no other adequate remedy at law and (2) he or she is clearly entitled to the relief sought. Curry v. Wilson, 853 S.W.2d 40, 43-44 (Tex.Crim.App. 1993); In re State, 180 S.W.3d 423, 425 (Tex.App.-Tyler 2005, orig. proceeding).
The writ of prohibition issues only to prevent the commission of a future act and should not issue to correct an act which has been already fully performed. LeBlanc v. Gist, 603 S.W.2d 841, 843 (Tex.Crim.App. 1980); State, 180 S.W.3d at 425. Haggerty's request to issue a writ of prohibition based on the felony DWI conviction seeks to correct an act already fully performed. Thus, a writ of prohibition is not available to remedy the felony DWI conviction currently on appeal.
Although we may issue writs of prohibition to enforce our jurisdiction, courts of appeals do not have general power to issue writs of prohibition. In re Yates, 193 S.W.3d 151, 152 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding); see Tex. Gov't Code Ann. § 22.221 (Vernon 2004). A court of appeals does not have jurisdiction, absent "actual jurisdiction of a pending proceeding" to issue a writ of prohibition. In re Nguyen, 155 S.W.3d 191, 194 (Tex.App.-Tyler 2003, orig. proceeding); see Yates, 193 S.W.3d at 152. Because we do not have actual jurisdiction at the present over the possession charge which has yet to be tried, our jurisdiction is limited to mandamus authority. See Nguyen, 155 S.W.3d at 194. We overrule Haggerty's request for a writ of prohibition.
II. Haggerty Requests Relief Not Available
Haggerty's petition requests relief which this Court lacks jurisdiction to grant. Haggerty's petition requests relief against Young, the county and district attorney of Lamar County. This Court lacks jurisdiction to issue a writ of mandamus against a county attorney or a district attorney. See Tex. Gov't Code Ann. § 22.221. We note, though, that this Court does have jurisdiction to order the trial court to enter an order disqualifying a district or county attorney. See In re Goodman, No. 06-06-00102-CV, 2006 Tex. App. LEXIS 10815 (Tex.App. — Texarkana Dec. 21, 2006, orig. proceeding). Even if we were to assume Haggerty intended to name the Honorable Scott McDowell, presiding judge of the Sixth Judicial District of Texas, as respondent, Haggerty has still failed to show he is entitled to relief, as discussed below.
To the extent Haggerty requests this Court to order the trial court to retroactively disqualify Young and order a new trial, this Court cannot grant such relief through a writ of mandamus. Mandamus is an extreme remedy and will not be granted unless no other remedy at law exists. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). Because Haggerty's remedy, if any, in connection with the offense for which he has been convicted is through direct appeal, Haggerty would not be entitled to a writ of mandamus even if his petition did comply with Rule 52.3 of the Texas Rules of Appellate Procedure, which it does not. See In re Harrison, 187 S.W.3d 199, 200 (Tex.App.-Texarkana 2006, orig. proceeding); cf. Ex parte Richardson, 201 S.W.3d 712, 713 (Tex.Crim.App. 2006).
III. Haggerty Has Not Shown the Trial Court Has Been Presented With the Complained-Of Issue
To the extent Haggerty is requesting relief in the case currently pending against him, Haggerty has not shown he is entitled to relief. To be entitled to mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law. Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 548 (Tex.Crim.App. 1987).
Haggerty has not provided us with a record that shows that he has made any request of the trial court to perform a nondiscretionary act. See Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). Haggerty alleges his trial counsel refused to raise this issue. Even if Haggerty's petition could be construed as evidence that he has requested the trial court to disqualify Young, such a request would not be adequate. Haggerty acknowledges that he is represented by counsel. Haggerty, who is represented by counsel, has no right to hybrid representation. See Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App. 1977) (op. on reh'g); Reeves v. State, 46 S.W.3d 397, 400-01 (Tex.App.-Texarkana 2001, pet. dism'd). Once an appellant has the assistance of counsel, the court is entitled to look solely to the attorney and is not required to consider pro se motions. McKinny v. State, 76 S.W.3d 463, 478 (Tex.App. — Houston [1st Dist.] 2002, no pet.). Because a trial court is not required to allow hybrid representation, Haggerty has failed to show that the trial court has been presented with the issue of whether Young is disqualified.
We note that Haggerty's petition bears the signature of a notary public, but Haggerty fails to certify that the facts alleged are true and correct. It is not necessary for us to decide whether the petition can be considered as a record of the events which occurred in the trial court because, as discussed below, the facts alleged are insufficient to entitle Haggerty to the requested relief, even if true.
IV. The Record Is Insufficient
It is the relator's burden to provide this Court with a sufficient record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198-99 (Tex.App.-Texarkana 2006, orig. proceeding); see Tex. R. App. P. 52.3(j)(1). In addition to the deficiencies discussed above, the petition fails to comply with Rule 52.3 in numerous respects. See Tex. R. App. P. 52.3.
While the petition does contain an appendix, the appendix does not include "a certified or sworn copy of any order complained of, or any other document showing the matter complained of." See Tex. R. App. P. 52.3(d), (j)(1)(A). The petition also does not certify that a copy was served on the respondent. See Tex. R. App. P. 9.5.
As we stated in Goodman, "[a] trial court may not disqualify a prosecutor on the basis of a conflict of interest unless that conflict rises to the level of a due-process violation." Goodman, 2006 Tex. App. LEXIS 10815, at *3. We are unable to determine from the record provided whether these requirements have been met. In Goodman, a hearing was held on the defendant's motion to recuse and the defendant testified as to the information revealed to Young. Id. at *5. This Court held that the potential conflict reached the level of a due-process violation. Id. In this case, the record is insufficient to conclude that the trial court has been presented with evidence of a potential conflict of interest that rises to the level of a due-process violation. To the extent Haggerty seeks prospective relief, we also deny his petition for failure to comply with Rule 52.3.
V. Conclusion
Haggerty has failed to show he is entitled to a writ of prohibition because a writ of prohibition will not issue to correct a completed act and this Court can issue a writ of prohibition only to enforce our jurisdiction. Further, Haggerty is not entitled to mandamus relief. This Court cannot issue a writ of mandamus against a district or county attorney to disqualify him from appearing in court. Even if we construed Haggerty's petition as requesting relief against the trial court, Haggerty has failed to show that the trial court has been requested to perform a ministerial act and he has not provided a sufficient record.
For the reasons stated, we deny Haggerty's petition for writ of mandamus and petition for writ of prohibition.