Petition for Writ of Mandamus Denied and Memorandum Opinion filed

January 28 , 2014.

In The



## Fourteenth Court of Appeals

NO. 14

- 13

- 01129

- CR

IN RE ANTOINE MCLAMB , Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 338th District Court Harris County, Texas Tr ial Court Cause No. 1389878



### MEMORANDUM OPINION
On December 19, 2013, relator Antoine McLamb filed a petition for writ of

m andamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the Honorable Brock Thomas, presiding judge of the 338th District Court of Harris County, to conduct an evidentiary hearing on a motion for new trial

. As an initial matter, r elator’s petition does not include the contents or adhere to the form required in a petition for writ of mandamus. See Tex. R. App. P. 5 2

. 3 (j)2

(requiring relator to certify that every factual statement in the petition is supported by competent evidence in the appendix or record), 52.3 (k)(1)(A) (requiring relator
to include a certified or sworn copy of any order or other document made the subject of relator’s complaint ), 5 2 .7(a)(1) (requiring relator to include a certified or sworn copy of every document material to relator’s claim for relief that was filed in the underlying proceeding). Moreover, relator has not paid the filing fee or filed an affidavit of indigence. See In re Grable , No. 14

- 04

- 00779

- CV, 2004 WL 1946136, *1 (Tex. App.

— Houston [14th Dist.] Sept. 2, 2004, orig. proceeding) (mem. op. per curiam) (“[W]e are not required to r ule on matters unless a filing fee has been paid or a proper affidavit of indigence has been filed.”).
Furthermore, t o be entitled to mandamus relief with respect to a criminal law matter, 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.

procee ding). It is relator’s burden to provide the Court with a sufficient record to establish the right to mandamus relief. See Walker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); see also Young , 236 S.W.3d at 210. Relator fails to satisfy hi s burden , because he does not demonstrate that the relief he seeks is to compel a mere ministerial act by the trial court. There is no absolute right to a hearing on a motion for new trial. Smith v. State , 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). “A hea ring is not required when the matters raised in the motion for new trial are subject to be ing determined from the record,” and “even a defendant who has raised matters not subject to be ing determined from3

the record is not entitled to a hearing on his moti on for new trial unless he establishes the existence of ‘reasonable grounds’ showing that the defendant could be entitled to relief.” Lawal v. State , 368 S.W.3d 876, 884 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) (quoting Smith , 286 S.W.3d at 339). Mor eover, “[t]o deter ‘fishing expeditions,’ a motion for a new trial on matters not determinable from the record must be supported by an affidavit showing the grounds of attack as

a prerequisite to a hearing on that motion.” Lawal , 368 S.W.3d at 884 (quoting
Smith , 286 S.W.3d at 339). Relator provides no evidence with his petition that he even has filed a
motion for new trial. See Tex. R. App. P. 21.4(a), 21.6. Nor does relator provide any evidence that he filed an affidavit in support of a ny motion for new t rial. See
Smith , 286 S.W.3d at 339. Nor does relator provide any evidence he presented a request to the trial court to conduct a hearing on a motion for new trial. See Rozell
v. State , 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (“[A] reviewing court does

n ot reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for a hearing was presented to it.”). Thus, relator’s petition does not establish his entitlement to the extraordinary relief of a writ of
manda mus.
Accord ing ly, we deny relator’s petition for writ of mandamus.

PER CURIAM

Panel Consists of Chief Justice Frost and Justices Jamison and Wise. Do Not Publish

— Tex. R. App. P. 47.2(b).