in Re Michael Howell ( 2019 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 13, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00611-CR
IN RE MICHAEL HOWELL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
263rd District Court
Harris County, Texas
Trial Court Cause No. 15741750
MEMORANDUM OPINION
On August 6, 2019, relator Michael Howell filed a petition for writ of
mandamus 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 compel the Honorable Amy Martin,
presiding judge of the 263rd District Court of Harris County, to set aside her July
24, 2019 order allowing relator to proceed pro se. The petition is denied.
BACKGROUND
On February 22, 2018, relator was indicted for theft in the aggregate of at least
$2,500 and less than $30,000 between October 22, 2016 and December 22, 2016.
Relator was arrested on June 28, 2018 and released on a personal bond. On July 9,
2018, the trial court appointed Jermone Godinich, Jr. to represent relator.
Relator has complained to the trial court about Godinich’s representation of
him. On April 4, 2019, relator asked the trial court to appoint him new counsel. The
trial court denied relator’s request for new counsel. On July 10, 2019, relator filed
a request for a “Marsden Hearing”1 to address his request for new counsel.
The trial court held a hearing on July 18, 2019. According to relator, he
attempted to raise his concerns about the deficiencies in Godinich’s performance,
but the trial court gave him the following three options, which did not include the
appointment of new counsel: (1) proceed pro se; (2) retain counsel; or (3) continue
with Godinich’s representation of him.
On July 23, 2019, relator filed a motion to proceed pro se, in which he
complained in detail that Godinich’s representation was inadequate. At a hearing on
July 24, 2019, the trial court granted relator’s motion to proceed pro se. Howell
asserts that he was forced into proceeding pro se.
1
A Marsden hearing take its name from a California Supreme Court opinion in which the
court held that it is an abuse of discretion for a judge to deny a motion for substitution of attorneys
solely on the judge’s courtroom observations, despite a defendant’s offer to relate specific
instances of conduct. See People v. Marsden, 465 P.2d 44, 48 (Cal. 1970); see also People v.
Sanchez, 264 P.3d 349, 350 (Cal. 2011) (concluding that the trial court must conduct a Marsden
hearing only when there is at least some clear indication by the defendant, either personally or
through counsel, that the defendant wants a substitute attorney).
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ANALYSIS
To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). “An
act is ministerial ‘when the law clearly spells out the duty to be performed . . . with
such certainty that nothing is left to the exercise of discretion or judgment.’” State
ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (orig.
proceeding) (quoting Tex. Dep’t of Corrections v. Dalehite, 623 S.W.2d 420, 424
(Tex. Crim. App. 1981)). In other words, a relator must show that “he has ‘a clear
right to the relief sought’—that is to say ‘when the facts and circumstances dictate
but one rational decision’ under equivocal, well-settled law (i.e., from extant
statutory, constitutional, or case law sources), and clearly controlling legal
principals.” State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d
207, 210 (Tex. Crim. App. 2007) (orig. proceeding) (quoting Buntion v. Harmon,
827 S.W.2d 945, 947, 948 n.2 (Tex. Crim. App. 1992)).
A defendant who is displeased with his appointed counsel must bring the
matter to the attention of the trial court and has the burden of proof to show that
defendant is entitled to a change of counsel. Malcom v. State, 628 S.W.2d 790, 791
(Tex. Crim. App. 1982). An indigent defendant’s right to counsel does not compel
the trial court to appoint counsel agreeable to the accused. King v. State, 29 S.W.3d
556, 566 (Tex. Crim. App. 2000). A trial court’s ruling on a motion to substitute
counsel is reviewed for an abuse of discretion. Carroll v. State, 176 S.W.3d 249,
256 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
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Relator has not brought a sufficient record establishing his right to mandamus
relief. See In re Henry, 525 S.W.3d 382, 382 (Tex. App.—Houston [14th Dist.]
2017, orig. proceeding). There is no reporter’s record of either the July 18, 2019 or
July 24, 2019 hearing or any other relevant hearing that took place in the trial court.
See Tex. R. App. 52.7(a)(2). Relator also has not provided a copy of the July 24,
2019 order granting his motion to proceed pro se. See Tex. R. App. P. 52.3(k)(1)(A).
The reporter’s records and the order are not necessarily the only items that relator
has not provided. See Tex. R. App. P. 52.7(a)(1). Furthermore, relator has attached
to his petition Exhibits B, F, G, and H, which are affidavits and other documents that
were not before the trial court and that we may not consider in this proceeding. See
Whitehead v. State, 130 S.W.2d 886, 873 (Tex. Crim. App. 2004).
From this record we cannot tell if relator had a clear right to relief. See Young,
236 S.W.3d at 210. Therefore, relator did not meet the ministerial-act prong of the
requirements for mandamus relief.
Finally, the right to mandamus relief generally requires a predicate request for
action by the trial court and the trial court’s erroneous refusal to act. In re Coppola,
535 S.W.3d 506, 510 (Tex. 2017) (orig. proceeding) (per curiam). Relator has not
shown that he asked the trial court to reconsider its ruling.
Relator has not established the he is entitled to mandamus relief. Accordingly,
we deny relator’s petition for writ of mandamus. We also deny relator’s motion for
emergency relief.
PER CURIAM
Panel consists of Justices Christopher, Spain, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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