In Re Don Allen Whitaker--Appeal from 258th District Court of San Jacinto County

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In The Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00071-CV _________________ IN RE DON ALLEN WHITAKER ________________________________________________________________________ Original Proceeding ________________________________________________________________________ MEMORANDUM OPINION A petition for writ of mandamus filed by Don Allen Whitaker asks this Court to order the judge presiding in the trial court to either recuse herself from post-conviction habeas proceedings or request that the presiding judge of the administrative judicial district assign a judge to hear Whitaker s motion to recuse. See generally Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2010); Tex. R. Civ. P. 18a. Mandamus relief relating to a post-conviction habeas proceeding must be obtained from the Court of Criminal Appeals. In re McAfee, 53 S.W.3d 715, 718 (Tex. App. Houston [1st Dist.] 2001, orig. proceeding) (request for hearing on habeas application); see also In re Newman, No. 14-08-00064-CV, 2008 WL 323762 (Tex. App. Houston 1 [14th Dist.] Feb. 7, 2008, orig. proceeding) (mem. op.) (request for discovery and inspection of evidence). Complaints regarding the trial court s failure to address a recusal motion filed in post-conviction habeas proceedings should be addressed to the Court of Criminal Appeals.1 See Ex parte Sinegar, 324 S.W.3d 578, 580 (Tex. Crim. App. 2010) (citing Ex parte Sinegar, No. AP-76-340, slip op., 2010 WL 1794960 (Tex. Crim. App. May 5, 2010) (not designated for publication)) (addressing complaint regarding failure to act on motion to recuse filed in a post-conviction habeas proceeding). Whitaker has not shown that he is presently entitled to mandamus relief from this Court. Accordingly, we deny the petition for writ of mandamus. PETITION DENIED. PER CURIAM Opinion Delivered March 10, 2011 Before McKeithen, C.J., Gaultney and Horton, JJ. 1 The Court of Criminal Appeals denied Whitaker s habeas application on February 23, 2011. See Ex parte Whitaker, No. WR-75,267-01, available at http://www.cca. courts.state.tx.us/opinions/Case.asp?FilingID=278500. 2

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