Petition for Writ of Mandamus Denied and Memorandum Opinion filed May
7, 2013.




                               In The

                 Fourteenth Court of Appeals

                          NO. 14-13-00359-CR
                          NO. 14-13-00360-CR
                          NO. 14-13-00361-CR
                          NO. 14-13-00362-CR
                          NO. 14-13-00363-CR
                          NO. 14-13-00364-CR
                          NO. 14-13-00365-CR
                          NO. 14-13-00366-CR



                    IN RE KERRY BEAL, Relator


                       ORIGINAL PROCEEDING
                         WRIT OF MANDAMUS
                 On Appeal from the 268th District Court
                         Fort Bend County, Texas
  Trial Court Cause Nos. 12DCR059320, 12DCR059320A, 12DCR059320B,
     12DCR059451, 12DCR059451A, 12DCR059451B, 12DCR060479 &
                             12DCR060479A
                          MEMORANDUM OPINION

      On April 26, 2013, relator Kerry Beal filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In
the petition, relator asks this court to compel the Honorable Brady Elliott,
presiding judge of the 268th District Court of Fort Bend County, to rule on his pro
se motion requesting removal of his appointed attorney and appoint a substitute
attorney.

      In his petition, relator identified eight trial court cause numbers. Relator
recognizes that he is not entitled to hybrid representation in a criminal case, but
alleges the underlying proceeding is an expunction proceeding, which is civil in
nature. See Texas Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.
App.—Houston [14th Dist.] 2008, no pet.). However, the cause numbers listed by
relator involve criminal cases for arson, attempted murder, and aggravated assault.
See Beal v. State, Nos. 14-12-00985-CR; 14-12-00986-CR; 14-12-00987-CR; 14-
12-00988-CR; 14-12-00989-CR; 14-12-00990-CR; and 14-12-00994-CR 2012 WL
5868953, (Tex. App.—Houston [14th Dist.] Nov. 20, 2012, no pet.) (not
designated for publication).

      To be entitled to mandamus relief in a criminal case, a relator must show
that he has no adequate remedy at law to redress his alleged harm, and that what he
seeks to compel is a ministerial act, not involving a discretionary or judicial
decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana,
236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). Consideration of
a motion that is properly filed and before the court is a ministerial act. State ex rel.
                                           2
Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding). A
relator must establish the trial court (1) had a legal duty to rule on the motion; (2)
was asked to rule on the motion; and (3) failed to do so. In re Keeter, 134 S.W.3d
250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Villarreal, 96 S.W.3d
708, 710 (Tex. App.—Amarillo 2003, orig. proceeding) (relator must show that
trial court received, was aware of, and was asked to rule on motion).

      Relator’s petition reveals that counsel has been appointed to represent him in
the criminal proceedings.      A criminal defendant is not entitled to hybrid
representation; whether to allow representation partially by counsel and partially
pro se is within the trial court’s discretion. See Robinson v. State, 240 S.W.3d 919,
922 (Tex. Crim. App. 2007); Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim.
App. 1989). A trial court has no legal duty to rule on pro se motions or petitions
filed with regard to a criminal proceeding in which the defendant is represented by
counsel. See Robinson, 240 S.W.3d at 922. Consequently, the trial court did not
have a legal duty to rule on relator’s requests for hearings or motions.

      With respect to relator’s complaints regarding his counsel, a trial court’s
discretionary decision to deny hybrid representation cannot be reviewed by
mandamus, and an appeal provides an adequate remedy for any denial of relator’s
right to self-representation. E.g., Alford v. State, 367 S.W.3d 855 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (reversing conviction based on denial of
right to self-representation); In re McIntosh, No. 04-12-00303-CR, 2012 WL
2125929, at *1 (Tex. App.—San Antonio June 13, 2012, orig. proceeding) (mem.
op., not designated for publication); In re Bohannan, No. 09-11-00684-CV, 2011
                                          3
WL 6747468, at *1 (Tex. App.—Beaumont Dec. 21, 2011, orig. proceeding)
(mem. op., not designated for publication).

      For these reasons, we deny relator’s petition for writ of mandamus.



                                              PER CURIAM



Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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