Opinion
14-21-00578-CR
11-09-2021
IN RE MICHAEL CHRISTOPHER MOORE, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 10TH DISTRICT COURT GALVESTON COUNTY, TEXAS TRIAL COURT CAUSE NO. 21-CR-2272
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).
MEMORANDUM MAJORITY OPINION
Kevin Jewell, Justice
On October 14, 2021, relator Michael Christopher Moore 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 Kerry Neves, presiding judge of the 10th District Court of Galveston County, to grant relator an examining trial. See Tex. Code Crim. Proc. art. 16.01.
In his petition, relator asserts he requested an examining trial on July 14, 2021, prior to the issuance of an indictment; however, petitioner states that the "Grand Jury for the County of Galveston filed said indictment regarding case number 21-CR 2272, on August 10, 2021 . . . ." Relator contends this violated his constitutional rights. 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.
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 complained); see also Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (unsworn declarations).
Persisting in my view that our duty as judges is to reach a decision on the merits based on a proper record and that due process and due course of law require that this court give notice when the original proceeding record does not comply with the Texas Rules of Appellate Procedure, I would give notice of the deficiencies with the record and allow relator an opportunity to cure. 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).
I dissent from the court's failure to provide notice and an opportunity to cure. I express no opinion on the merits of the petition for a writ of mandamus.