Opinion issued March 17, 2022

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00077
- CR

——————————— IN RE RICKY ALLEN GASPER , Relat or

Original Proceeding on P etit ion for Writ of Mandamus

MEMORAN D U M OPINION
R elator, Rick y Allen Gasper , incarcerated and acting p ro se, has filed a petition for writ of mandamus, asserting that he is entitled “ to an examining trial prior to the issuance of an ind ictment

. ” Rel ato r requests that this Court “ cause the trial court to honor , resp o nd, and show cause why [he] continue [ s ] to be de tained in direct violation of Tex as and federal statu [t es]

. ”2

We deny th e petition for writ of mandamus

. 1
First , r elator’s pe titi on does not comply with the requiremen ts en um e rated i n the Te xa s Ru les o f App ell a te Procedur e. See T EX
. R. A PP
. P. 9.5, 52. 3(a )

– ( h ) , ( j )

– (k) ; see al so T EX
. R. A PP
. P 52.7

. A m ong o ther things, the petition lacks an appendix and a record

. See T EX
. R. A P P
. P. 52.3(k) (1) (req uiring petition for writ

o f mandam u s be fi l ed with ap pend ix t ha t conta ins “a cert ifie d o r swor n copy of

a ny order complained of, or any other document showing th e matter complained of”) , 52

. 7 (a) ( requiring petition for writ of m anda mus be fil ed with record
conta ining “ a certified o r sw orn copy of e very docum ent that is mate rial to the
relator ’ s cla i m for relief and th at was fi led in any underly ing proceeding ” and

“ properly authentica ted transcript of any relevant testimony from a ny u nde rl y ing proceeding ” )

. In the a bsence of an appe n dix and reco rd, this Court can no t eva luate
t he me rits of r e lator’ s p etition. See In re J ammer , No. 01

- 21

- 00598

- CR , 2021 WL 5774175, at * 1 (T ex. App.

— Houston [1st Dist.] Dec. 7, 2021, no pet.) (mem. op., not designated for publication) ; In re McCre a ry , No. 12

- 1 5

- 0 0 067

- CR , 20 15 W L 13 95783, a t *1 (Te x. A pp.

— Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not designated for publicat i on) (“ Without an appendix and a r ecord , we are unable to d et erm in e th at [r] el ator is en titled t o manda m us relief ”)

.

1 The underlying case is The State of Texas v. Ricky Allen Gasper , C aus e No. 170321 9 , pending in the 185th D istrict Court of Harris County, Texas, the Honorable Abigail Anastasio presiding.3

S e cond , t here is n o sho wing that the t ri a l court refused to rule on any motion

o r req u est for the relief that relator seeks in this Court

. See O ’ Connor v. First
Court of A

ppeals , 837 S.W.2d 94, 97 (T ex. 199 2) (to obtain mandamus relief , rel ator must show t r ial cou rt ha d l e gal duty t o pe rform non - d iscret ionary act,

r ela t or made demand for p erformance, and trial court refused) ; In re Dong Sh en g Huang , 491 S.W.3d 383, 385 (T ex. A pp.

— Houston [1st Dist.] 2 016 , or i g . procee ding) (“F i ling a r equest for a ruling is i n suffi cient to call the m atte r to the ju dge ’ s attent i on becaus e a judge may be u naware of the request. I nst ead, the
p a r t y demanding a r

uling must set its request eithe r for su bmission or a hearing. ”) ; see also In re J

ammer , 2021 WL 5774175, at *1.
Th ird, relator requests that this Court “ cause the trial court to honor , resp ond, and show cause why [he] continue [ s ] to be de tained in direct violation of
Tex as and federal statu [t es]

. ” To the exten t that relator seeks habeas relief in his mandamus petition, we lack jurisdiction over the requ est

. Se e, e.g. , In re Jammer , 2021 WL 5774175, at *2. W e do not have origin al habe as corpus jurisdiction in criminal matters. See T EX
. G OV ’ T C ODE A NN
. § 22.221(d); In re Spriggs , 528 S.W.3d 234, 236 (Te x. App.

— Amarillo 2017, o rig. proceedings); In re Ay ers , 515 S.W.3d 356, 356 (Tex. App.

— Houston [14th Dist. ] 2016, o ri g. proceeding) ; see also Ater v. Eighth Court of A p peals , 802 S.W.2d 241, 243 (Tex. Crim. App. 1991 )4

(only Texas Court of Criminal A p peals has “ jurisdiction in final post

- conviction felony proceedin gs ” ).
Fin ally, relator ’s pe tition fai l s on the meri ts. An examining trial puts “the State to its burden of proving that probable cause exists to believe the accused committed the offense charged against him. ” S tat e ex rel. Holmes v. Salinas , 784 S.W.2d 4 21, 425 (Tex. Crim. Ap p. 1990). However, once the grand j ury has returned a probable cause determination by an indictment , the purpose for

an examining trial is satisfied and the defendant is no longer entit led to one . See id .; see also In re Webb , No. 0 1

- 21

- 00650

- CR, 2021 WL 5828934, at *1 (Tex. App.

— Houston [ 1st Dist.] Dec. 9, 2021, orig. procee d ing ) (mem. op., not designated for publication). In his mandamus petition, relator concedes that a Harris Count y G r and J ury issued a true b i ll of indictment in his underlying
criminal case . Further, before relator filed his mandamus petition, he , with an agreed punis hme nt recommendation from the State, pleaded guilty to the felony offense of burglary 2 in his underlying crimin al case. And the trial court, in

ac cordance with the plea agreement, assessed appellant ’ s punishment at confinement for one year. R elator has not establish ed his entitlement to mandamus relief. See, e.g. , In re Webb , 2021 WL 582 8934, at *1

.

2 See T EX
. P ENAL C ODE A NN
. § 30.02.5

W e de ny relator’s petit ion for writ of mandamus

. A ll pending motions are d i smis sed a s moot. P ER CU RIAM
Panel cons ists of Chief Justice Radac k and Justice s Count iss and Farris

. D o n o t pub li s h

. T E X
. R. A PP
. P

. 47.2 (b )

.