In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00050-CV
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IN RE: DOUGLAS A. DUNN
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
On October 2, 2003, Douglas Dunn, an inmate, filed suit against various prison officials. In connection with his suit, on March 22, 2006, Dunn filed his "Writ of Habeas Corpus Ad Testificandum" and his "Motion Requesting Pre-Trial Schedule and Compel Discovery." From the record, it appears that the trial court denied Dunn's petition for writ of habeas corpus and that the discovery motion remained pending. Further, by letter to the trial court filed February 9, 2007, Dunn requested that the trial court set the matter for trial.
Dunn has filed with this Court a petition for writ of mandamus asking this Court to direct the trial court to rule on his pending motions and to set the case for trial. On May 1, 2007, the trial court signed an order dismissing Dunn's underlying action and specifically dismissing any pending motions. The trial court is authorized to dismiss a claim upon having made certain findings regarding the veracity or merit of the inmate's allegations. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a) (Vernon 2002). (1)
In our disposition of Dunn's petition, we do not review the propriety of the trial court's dismissal itself; such review is a matter for direct appeal. The trial court's dismissal does, however, render Dunn's petition for writ of mandamus moot.
Accordingly, we dismiss as moot Dunn's petition for writ of mandamus.
Bailey C. Moseley
Justice
Date Submitted: May 15, 2007
Date Decided: May 16, 2007
1. Specifically, the trial court may dismiss the action before or after service of process, if the trial court determines that "(1) the allegation of poverty in the affidavit or unsworn declaration is false; (2) the claim is frivolous or malicious; or (3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false." Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a).
M>McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); the right to public trial, Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984); and total deprivation of expert assistance to which the defendant was entitled, Rey v. State, 897 S.W.2d 333, 345 (Tex. Crim. App. 1995).
Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. "Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Rose v. Clark, 478 U.S. at 577-78 (citation omitted).
Fulminante, 499 U.S. at 310.
While Carrillo categorizes the trial court's utterances, at the time it assessed his punishment, as showing that the trial court lacked impartiality, we disagree. Assessing punishment, even if it is done erroneously, would not ordinarily, alone, demonstrate that the trial court lacked impartiality. The comments made by the trial court, at the time it imposed a sentence, provided no such demonstration here. We can find no structural error.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 19, 2009
Date Decided: August 20, 2009
Do Not Publish
1. The trial court had commented to the jury that, in the event of a revocation, "I would think it would be a safe investment that it's going to be addressed, and your will carried out for any violation." The court continued, "That probably won't be during my tenure as judge. . . . [T]his is the last year of my service." In context, the court was not promising any particular sentence for Carrillo in the event of a revocation.