Alfredo Bernal, Jr
05-17-00081-CV
| Tex. App. | Feb 2, 2017Background
- Relator Alfredo Bernal Jr. was convicted (July 20, 2016) of misdemeanor evading arrest; his direct criminal appeal remains pending.
- On November 9, 2016, this Court ordered the trial court to make findings about the reporter’s record, relator’s indigence, and appointment of counsel in the appeal.
- The trial court filed supplemental clerk’s records on January 19, 2017, which included findings dated November 22, 2016.
- Relator filed a motion seeking appointment of new appellate counsel and asked this Court to order the trial court to rule on that motion.
- Relator also asked this Court to compel the trial court to comply with the November 9, 2016 order (which the trial court had already complied with via the November 22 findings).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus can compel the trial court to rule on a motion to appoint new appellate counsel | Bernal argues the trial court has a duty to rule on his motion and mandamus is appropriate to compel a ruling | Trial court’s action to appoint or replace counsel is discretionary; no ministerial duty to grant substitution or to search for counsel agreeable to defendant | Denied. Mandamus unavailable because appointment/discharge of counsel is discretionary, not a ministerial duty |
| Whether the trial court complied with this Court’s November 9, 2016 order to make findings | Bernal contends the court had not complied and asks this Court to compel compliance | Trial court filed supplemental clerk’s record with November 22 findings | Denied as moot because the trial court complied by issuing the requested findings |
Key Cases Cited
- State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207 (Tex. Crim. App. 2007) (mandamus requires absence of adequate legal remedy and the act sought must be ministerial)
- State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex. Crim. App. 1987) (consideration of a properly filed motion is a ministerial act)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (relator bears burden of providing a record adequate to establish right to relief)
- Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989) (no right to appointment of a particular attorney)
- Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990) (appointment of new counsel and searching for counsel agreeable to the accused is within trial court discretion)
- Buntion v. Harmon, 827 S.W.2d 945 (Tex. Crim. App. 1992) (trial court has no duty to discharge appointed counsel to find substitute counsel agreeable to defendant)