In Re: Gary Dean Cooks--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00053-CV

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IN RE:

GARY DEAN COOKS

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Grant, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

Gary Dean Cooks has filed a petition seeking a writ of mandamus. In his petition, he states he is awaiting trial on a kidnapping charge and complains that the trial court has refused or failed to rule on a number of motions he has prepared and filed pro se. Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994).

A trial court is required to consider and rule on a matter within its jurisdiction within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266 67 (Tex. Civ. App. Tyler 1976, orig. proceeding). "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act," and mandamus may issue to compel the trial judge to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, orig.proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (holding trial court abused discretion by refusing to conduct hearing and render decision on motion).

In this case, however, Cooks is represented by counsel in the proceeding below. There is no right to hybrid representation in Texas. Ex parte Taylor, 36 S.W.3d 883 (Tex. Crim. App. 2001); Turner v. State, 805 S.W.2d 423, 425 n.1 (Tex. Crim. App. 1991); Meyer v. State, 27 S.W.3d 644, 648 (Tex. App. Waco 2000, pet. ref'd). Accordingly, the trial court need not consider or rule on motions presented by the defendant personally. Once an appellant has assistance of counsel, the court is entitled to look solely to the attorney and is not required to consider pro se motions. McKinny v. State, 76 S.W.3d 463, 478 (Tex. App. Houston [1st Dist.] 2002, no pet.); Ashcraft v. State, 900 S.W.2d 817, 831 (Tex. App. Corpus Christi 1995, pet. ref'd, pet. dism'd [2 pets.]). The trial court did not violate a ministerial duty by declining to rule on the motions filed.

We deny the petition for writ of mandamus.

Josh R. Morriss, III

Chief Justice

Date Submitted: April 28, 2004

Date Decided: April 29, 2004