IN RE: EDUARDO "WALO" BAZAN--Appeal from 92nd District Court of Hidalgo County

NUMBER 13-05-074-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE EDUARDO WALO BAZAN

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On Petition for Writ of Mandamus ______________________________________________________ _

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Wittig //

Per Curiam Memorandum Opinion //

Relator, Eduardo Walo Bazan, filed a petition for writ of mandamus and an emergency application for temporary relief in the above cause on February 4, 2005. That same day, this Court granted the the motion for emergency stay and ordered the trial court proceedings stayed. The Court further requested a response from the real party in interest, the State of Texas, by and through the Criminal District Attorney in and for Hidalgo County, Texas and such response was filed on February 15, 2005. On February 14, 2005, the real party in interest also filed a motion to disqualify relator s counsel.

We deny the petition for writ of mandamus for the following reasons. First, the petition fails to meet the procedural requirements of Texas Rule of Appellate Procedure 52. See Tex. R. App. P. 52. Second, relator has an adequate remedy at law. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). Under the local rules, relator could have, but did not, request the presiding judge to transfer the case. See Hidalgo (Tex.) Dist. Ct. Loc. R. 1.2.7. Further, relator could have but, according to the record before us, did not, file a motion to consolidate in the court where the first case was filed. See id. at 1.2.5. Third, relator has not timely pursued the transfer of this cause and has effectively acquiesced in the case remaining in the court below. See In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999); see eg., Rivercenter Asocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). // In the instant case, the original indictment was filed in the 93rd District Court on September 3, 2003, and a subsequent indictment was filed in the 92nd District Court on December 14, 2004. The petition for writ of mandamus was not filed with this Court until February 4, 2005, well after the trial court denied relator s oral motion to transfer and after the occurrence of various proceedings and hearings below.

Accordingly, the Court, having examined and fully considered the petition for writ of mandamus and the response, is of the opinion that relator has not shown himself entitled to the relief sought and the petition for writ of mandamus should be denied. See Tex. R. App. P. 52.8. Accordingly, the stay is hereby ordered LIFTED. The petition for writ of mandamus is DENIED. Without addressing the merits of the real party in interest s motion to disqualify, the motion to disqualify is DENIED as moot without prejudice to the real party s ability to urge said motion in the trial court.

PER CURIAM

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 13th day of April, 2005.