in Re John Henry Boykin ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-353 CV ____________________

IN RE JOHN HENRY BOYKIN

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Original Proceeding

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MEMORANDUM OPINION

John Henry Boykin petitioned the Court for a writ of mandamus to compel the trial court to rule on his pre-trial motions. Because the motions are material to his claim for relief, the relator is obliged to provide them to the Court. Tex. R. App. P. 52.7(a). Boykin's discovery motions have not been provided to this Court. Therefore, the relator has not demonstrated that the trial court failed to perform the ministerial act of ruling on discovery motions. Boykin did provide the Court with a copy of a motion titled "Motion to Set Aside/Dismiss Prosecution Pursuant to CCP, Article 27.03." No allegation of irregularities in the grand jury proceedings is implied in the motion; instead, Boykin alleges the State will not be able to prove its case at trial because the evidence will be a swearing match between witnesses. There is no pre-trial mechanism for challenging the sufficiency of the evidence. See Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005). The trial court did not err in failing to rule upon a motion Boykin was not entitled to raise before trial.

The relator also contends the trial court violated a ministerial duty by failing to rule on his motion for speedy trial. The motion was filed in February 2005 and the case is currently on the trial docket for October 10, 2005. The trial court conducted a hearing after Boykin sought mandamus relief in this Court, and a reporter's record of that hearing has been filed. Boykin raised his motion for speedy trial during the hearing. The trial court advised Boykin, "I got to get to you as fast as I possibly can. I don't know when you're set but next time you're up, you're going to get just as fair a shake at getting to trial that day as anybody else and that's the best I can do." This is a de facto ruling on the relator's motion for speedy trial. The correctness of that ruling is subject to review on appeal following conviction. See Zamorano v. State, 84 S.W.3d 643, 647-48 (Tex. Crim. App. 2002). ⁽¹⁾ In this case, the relator has not shown that appeal will not be an adequate remedy.

We may grant mandamus relief if relator demonstrates that the relator has no other adequate legal remedy. See Buntion v. Harmon, 827 S.W.2d 945, 947 (Tex. Crim. App. 1992). In this case, the relator has not shown that he is entitled to the relief sought.

The petition for writ of mandamus is therefore denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered September 22, 2005

Before Gaultney, Kreger and Horton, JJ.

1. A speedy trial claim requires balancing four factors: (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Because the issue may be litigated in the trial court and raised on appeal, at this time we express no opinion on whether the relator's right to a speedy trial has been violated.