In re Hoyt Duane Forester--Appeal from 379th Judicial District Court of Bexar County

Originating from the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2000-CR-4249-A

Honorable Bert Richardson, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: February 28, 2001

PETITION FOR WRIT OF MANDAMUS DENIED

The petitioner, Michael Joseph Kearns, applied for a writ of mandamus on behalf of the applicant, Hoyt Duane Forester. In his petition, Kearns stated that he had applied for a writ of habeas corpus in the trial court, and complained that the trial court had failed to enter a final appealable order on his application. A writ of mandamus proceeding may be used to regulate certain criminal proceedings, Von Kolb v. Koehler, 609 S.W.2d 654, 655 (Tex. Civ. App.-El Paso 1980, no writ), but the court of appeals will issue a writ only if it is shown that the trial judge failed to perform a ministerial or a non-discretionary act, O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The record in this proceeding does not show that the trial judge failed to perform a ministerial or a non-discretionary act. Therefore, the petitioner's application for writ of mandamus is DENIED.

PER CURIAM

DO NO PUBLISH