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 176t h 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

m andamus 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 co mpel 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 c ounsel. A defendant is not entitled to hybrid representation, and, a s a consequence, a trial cour t is free to disregard an y 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, i n the absence of a right to hybrid representation , relator’s pro se petition f or writ of mandamus
prese nts nothing for this court’s review. See Patrick v. State , 906 S.W.2d 481, 498 (Tex. Crim. App. 1995); Tu rner v. State , 805 S.W.2d 423, 425 n.1 (Tex. Cr i m. App. 1991). Additionally, t o be entitled to mandamus relief, the relator must show that (1) he has no a d equate remed y 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 , 51 6 S.W.3d 488, 494

– 95 (Tex. Crim. App. 2017) (orig. procee ding)

. A trial court has a ministerial duty to cons i der and rule on motions properl y filed and pending before it, and man damus may issue to compel the trial court to act. In re Henry , 525 S.W.3d 38 1 , 382 ( Tex. App.

— Houston [14th Dist.] 2017, orig. proceeding). For relator to be entitled to mandamus relie f , the r ecord must show (1) the motion was filed and brought to the at tention of the respondent

- judge for a ruling, and (2) the respondent

-

judge ha s not ru led on the motion within a reasonable time after the motion was submitted to the court for a ruling o r after the party requested a ru ling. In re Gomez , 602 S.W.3d 71, 73 (Tex. Ap p.

— Houston [14th Dist.] 2020, orig. proceeding). As the party seeking m andamu s relief, relator has th e burden of providing this court with a sufficient record to establish his ri g ht to m andamus relief. I d. at 7 3

– 74 ; He nry , 525 S.W.3d at 382 ; see also Tex. R. App. P. 52.7(a)(1) ( relator must f ile with the mandamus petition “ a certi fied or sworn copy of ev ery document that is material to the relator ’ s claim for relief and that was f iled in any underlying proceeding”)

. To establish that the motion was filed, the relator must provide3

either a file

- stamped copy of the motion or o ther p roof that the motion in fact was filed and is pending before the trial court. Gomez , 602 S.W.3d at 7 4

. Mere ly fil ing a motion with a court clerk does n ot show th at the motion was brought to the trial
court ’ s attention for a ruling because the cle r k ’ s kno wledge is not imputed to the trial court. In re Ramos , 598 S.W.3d 472, 473 (Tex. App.

— Houston [14th D ist.] 2 020, o rig. proceeding).
R elator has not provided this court with a mandamus record to demonstrate that a motion for waiver of counsel is pe n din g in the trial court. Similarly, there is no record that relator has brough t a pending motion to the attention of the respondent

-

judge for a ruling. Mere filing is insuf ficient beca use the clerk’s knowledge is not imputed to the trial judge. See Ram o s , 5 9 8 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 tr i a l 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, r elator has not made the re quisite showing. See Gome z , 602 S.W.3d at 73.
Relator has not established tha t he is e ntitled to mandamus relief. Accordingly, we d eny 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 c onsi s ts of Chief Justice Christopher and Justices Bourliot a nd Wilson. Do Not Publish

— Tex. R. App. P. 47.2(b).