Motion Dismissed, Petition for Writ of Mandamus Denied, and Memorandum 

Opinion filed February 23, 2023.

In The

Fourteenth Court of Appeals

NO. 14-23-00019-CR

NO. 14-23-00020-CR

IN RE MARKISE DURDEN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

176th District Court

Harris County, Texas

Trial Court Cause No. 17732770 & No. 17732840

MEMORANDUM OPINION

On January 9, 2023, relator Markise Durden 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 Nikita 

V. Harmon, presiding judge of the 176th District Court of Harris County, to 

remove “unwanted court-appointed counsel. . . .”
2

Relator is represented by counsel. A defendant is not entitled to hybrid 

representation, and, as a consequence, a trial court is free to disregard any pro se 

motions presented by a defendant who is represented by counsel. Jenkins v. State, 

592 S.W.3d 894, 902 n.47 (Tex. Crim. App. 2018). Moreover, in the absence of a 

right to hybrid representation, relator’s pro se petition for writ of mandamus 

presents nothing for this court’s review. See Patrick v. State, 906 S.W.2d 481, 498 

(Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d 423, 425 n.1 (Tex. Crim. 

App. 1991). 

Additionally, to be entitled to mandamus relief, the relator must show that 

(1) he has no adequate remedy at law to redress his alleged harm, and (2) what he 

seeks to compel is a ministerial act, not a discretionary act. In re Powell, 516

S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a 

ministerial duty to consider and rule on motions properly filed and pending before 

it, and mandamus may issue to compel the trial court to act. In re Henry, 525 

S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). For 

relator to be entitled to mandamus relief, the record must show (1) the motion was 

filed and brought to the attention of the respondent-judge for a ruling, and (2) the 

respondent-judge has not ruled on the motion within a reasonable time after the 

motion was submitted to the court for a ruling or after the party requested a ruling. 

In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. 

proceeding).

As the party seeking mandamus relief, relator has the burden of providing 

this court with a sufficient record to establish his right to mandamus relief. Id. at 

73–74; Henry, 525 S.W.3d at 382; see also Tex. R. App. P. 52.7(a)(1) (relator must 

file with the mandamus petition “a certified or sworn copy of every document that 

is material to the relator’s claim for relief and that was filed in any underlying 

proceeding”). To establish that the motion was filed, the relator must provide 
3

either a file-stamped copy of the motion or other proof that the motion in fact was 

filed and is pending before the trial court. Gomez, 602 S.W.3d at 74. Merely filing 

a motion with a court clerk does not show that the motion was brought to the trial 

court’s attention for a ruling because the clerk’s knowledge is not imputed to the 

trial court. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.] 

2020, orig. proceeding).

Relator has not provided this court with a mandamus record to demonstrate 

that a motion for waiver of counsel is pending in the trial court. Similarly, there is 

no record that relator has brought a pending motion to the attention of the 

respondent-judge for a ruling. Mere filing is insufficient because the clerk’s 

knowledge is not imputed to the trial judge. See Ramos, 598 S.W.3d at 473. The 

respondent-judge is not required to consider a motion that has not been called to 

the trial court’s attention by proper means. See Henry, 525 S.W.3d at 382. Even if 

relator showed that his motion is properly pending in the trial court and the trial 

court was made aware of it, relator has not shown that it has been pending for an 

unreasonable period of time. In sum, relator has not made the requisite showing.

See Gomez, 602 S.W.3d at 73.

Relator has not established that he is entitled to mandamus relief. 

Accordingly, we deny relator’s petition for writ of mandamus. We dismiss as moot 

relator’s motion for waiver of counsel filed in this Court.

PER CURIAM

Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.

Do Not Publish — Tex. R. App. P. 47.2(b).