In Re: Refugio Padilla--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: REFUGIO PADILLA,

Relator.

No. 08-05-00356-CR

AN ORIGINAL PROCEEDING

IN MANDAMUS

O P I N I O N

Relator Refugio Padilla has filed a second petition for a writ of mandamus, again requesting that this Court order the Honorable Mary Anne Bramblett, 41st Judicial District Court, El Paso County, to act on his application for a writ of habeas corpus and to conduct a hearing and to rule on all his pro se motions. As noted in our previous opinion in In re Padilla, No. 08-05-00178-CR (Tex. App.--El Paso June 16, 2005, orig. proceeding) (not designated for publication), Relator has been represented by appointed counsel throughout the trial court proceedings.

To obtain 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., 727 S.W.2d 542, 548 (Tex. Crim. App. 1987).

Because Relator is represented by counsel, the trial court has no duty to rule on his pro se motions. See Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977); Gray v. Shipley, 877 S.W.2d 806, 806 (Tex. App.--Houston [1st Dist.] 1994, orig. proceeding). As previously noted in our prior opinion, one of Relator s pro se motions seeks appointment of new counsel, however, this motion does not contain a file stamp date nor is there any other indication that it was received by the trial court. Therefore, we have no record from which to determine whether the said motion or the application for a writ of habeas corpus was properly filed or ever brought to the trial court s attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.--Amarillo 2001, orig. proceeding) (filing the matter with the district clerk was not sufficient to impute knowledge of the pending pleading to the trial court such that it is made aware of it).

Moreover, Relator has attached to his petition copies of letters he has written to his newly court-appointed counsel as of June 2005. Apparently, the trial court has granted Relator s request for appointment of new counsel, thereby rendering moot Relator s previous pro se motion for appoint of new counsel.

For the reasons stated above, Relator s petition for writ of mandamus is denied.

RICHARD BARAJAS, Chief Justice

December 15, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)