
Opinion issued October 7, 2004 



 

 
 









In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-04-00907-CR
____________

IN RE JOSE B. DE LA CERDA, aka JUAN LOPEZ, Relator




Original Proceeding on Petition for Writ of Mandamus



 
MEMORANDUM  OPINION
                Relator requests that this Court compel respondent
 to conduct an
evidentiary hearing on the pro se motion for new trial that relator filed in cause
number 987708.  We deny the petition.
               A writ of mandamus will issue to correct a clear abuse of discretion or the
violation of a duty imposed by law when there is no adequate remedy at law. 
Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig.
proceeding).  The standard of review for a trial court’s refusal to hold an evidentiary
hearing on a motion for new trial is whether the trial court abused its discretion. 
Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.).  Therefore,
in order for this Court to grant relator’s petition, relator would have to provide us
with a record showing that the trial court clearly abused its discretion by refusing to
conduct an evidentiary hearing on the motion for new trial.  Relator did not include
a certified copy of his motion for new trial as an appendix to his petition, and the
petition must therefore be denied.  See Tex. R. App. P. 52.3(j).
               Relator is not without recourse on his ineffective assistance of counsel
claims, however.  A petition for writ of habeas corpus is usually the appropriate
vehicle to investigate claims of ineffective assistance of counsel.  Mitchell v. State,
68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
               The petition for writ of mandamus is denied.
               It is so ORDERED.
PER CURIAM

Panel consists of Chief Justice Radack, and Justices Keyes and Alcala.
Do not publish.  Tex. R. App. P. 47.2(b).
