In Re: Michael Morales--Appeal from Co Crim Ct at Law No 4 of Harris County

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November 25, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-01273-CV

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IN RE MICHAEL MORALES, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On November 18, 2003, relator filed a petition for writ of mandamus in this Court. See Tex. Gov=t. Code Ann. ' 22.221 (Vernon Supp. 2003); see also Tex. R. App. P. 52.

Relator claims he filed a motion to dismiss his conviction and an 11.07 writ of habeas corpus by mailing it on March 17, 2003. Relator claims he learned the trial court clerk never received the motion and writ. Relator asserts he mailed another copy in September 2003. Receiving no information, relator then filed an application for writ of habeas corpus in the First Court of Appeals. On October 16, 2003, the First Court issued an opinion dismissing for want of jurisdiction, noting that an appellate court does not have jurisdiction over original habeas corpus proceedings in criminal matters.

Now, relator seeks a writ of mandamus to obtain a ruling on his motion to dismiss and 11.07 writ. To be entitled to the extraordinary remedy of mandamus, relator must establish two requirements: 1) he has no other adequate remedy at law available, and 2) the act sought to be compelled is a clear and fixed duty imposed by law that is purely ministerial, as opposed to discretionary or judicial in nature. Eubanks v. Mullin, 909 S.W.2d 574, 576 (Tex.App. Fort Worth 1995, orig. proceeding). "An act is 'ministerial' if it constitutes a duty clearly fixed and required by law." State ex rel. Curry v. Gray, 726 S.W.2d 125, 127 128 (Tex. Crim. App. 1987).

Relator has not presented this court with a record showing the trial judge refused to perform a nondiscretionary duty. Because relator has not met his burden of establishing the requirements for entitlement to mandamus relief, we deny relator=s petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed November 25, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.