in Re Hector Martinez ( 2007 )

Opinion issued July 6, 2007

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00468-CR

____________

IN RE HECTOR MARTINEZ, Relator

---

Original Proceeding on Petition for Writ of Mandamus

---

MEMORANDUM OPINION

Relator, Hector Martinez, has filed a pro se petition for writ of mandamus. ⁽¹⁾ In his petition, relator complains that his right against self-incrimination has been violated at proceedings held prior to trial of his case. ⁽²⁾ The State ⁽³⁾ has filed a response requesting that this Court deny relator's petition for mandamus because appellant has an adequate remedy at law.

There are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Relator has not provided us with a record that shows that he made any request of respondent to perform a nondiscretionary act that respondent refused.

In addition, mandamus will not issue where there is an adequate remedy at law by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); see also Easton v. Rains, 866 S.W.2d 656, 659 (Tex. App.-- Houston [1st Dist.] 1993) (orig. proceeding).

Accordingly, we deny the petition for writ of mandamus.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1. We note that Relator is represented by counsel Mark Racer in the trial court.

2. Relator is charged in cause number 43333A in the 400th District Court of Fort Bend County Texas and his case is scheduled for trial on July 24, 2007.

3. John F. Healey, District Attorney, and Kristen Moore, Assistant District Attorney, Fort Bend County, Texas.