Opinion
No. 04-12-00454-CR
08-15-2012
IN RE Heriberto HERNANDEZ
MEMORANDUM OPINION
Original Mandamus Proceeding
This proceeding arises out of Cause No. 2011-CR-7651, styled State of Texas v. Heriberto Hernandez, in the 226th Judicial District Court, Bexar County, Texas, the Honorable Sid L. Harle presiding.
PER CURIAM Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
PETITION FOR WRIT OF MANDAMUS DENIED
On July 30, 2012, relator filed a petition for writ of mandamus, complaining the trial court denied his motion to dismiss appointed counsel. However, in order to be entitled to mandamus relief, relator must establish "(1) the act sought to be compelled is purely ministerial, and (2) that there is no adequate remedy at law." Benson v. District Clerk, 331 S.W.3d 431, 432 (Tex. Crim. App. 2011). Whether to dismiss appointed counsel is discretionary with the trial court. See Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.). An act that involves the exercise of any discretion is not ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 929 (Tex. Crim. App. 2001). Accordingly, because the act sought to be compelled is not purely ministerial, we conclude the petition for writ of mandamus should be DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM DO NOT PUBLISH