in Re: Richard Calvin Gipson
12-16-00250-CR
| Tex. App. | Oct 21, 2016Background
- Relator Richard Calvin Gipson was convicted of intoxication manslaughter and claims the State used a falsified toxicology report.
- Gipson filed a motion in the trial court requesting appointment of counsel to help pursue claims of actual innocence and ineffective assistance of counsel.
- Gipson contends the trial court has not ruled on his motion for appointment of counsel.
- He filed a petition for writ of mandamus in the Twelfth Court of Appeals asking the appellate court to compel the trial court to rule.
- The appellate court noted Gipson did not file the record required by Texas Rule of Appellate Procedure 52.7(a)(1) and did not show the motion was called to the trial court’s attention.
- The court denied mandamus because Gipson failed to establish the prerequisites for mandamus relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus should compel the trial court to rule on a motion for appointment of counsel | Gipson: trial court has a nondiscretionary duty to consider and rule; he asked the court to act | Respondent (trial court): Gipson did not show the motion was brought to the court’s attention; record not filed | Denied — Gipson failed to show the court had been called to the motion and he did not provide the required record; mandamus unavailable |
| Whether relator met mandamus prerequisites (no adequate remedy at law; ministerial duty) | Gipson: no adequate remedy and duty is ministerial to rule on motion | Respondent: Gipson did not satisfy the mandamus elements or supply necessary record | Denied — relator failed both to supply record and show nondiscretionary duty had been invoked |
Key Cases Cited
- State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207 (Tex. Crim. App. 2007) (mandamus prerequisites in criminal cases require showing lack of adequate remedy and ministerial duty)
- In re Molina, 94 S.W.3d 885 (Tex. App.—San Antonio 2003) (mandamus to compel ruling requires showing court had a duty, was asked to perform it, and failed to do so)
- In re Chavez, 62 S.W.3d 225 (Tex. App.—Amarillo 2001) (filing with clerk alone does not impute knowledge to trial court; relator must show the motion was called to court’s attention)