NO. 07-08-0126-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 31, 2008
______________________________
IN RE CITY OF LUBBOCK, TEXAS, RELATOR
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
Relator, the City of Lubbock, Texas, has filed a petition for writ of mandamus asking that we direct the respondent trial court judge to vacate a “gag order” signed on December 7, 2007, in a case pending before the trial court. We will deny relator’s petition.
On December 7, 2007, respondent sua sponte issued an order barring the parties from communicating with media outlets about the underlying case during its pendency. On March 13, 2008, relator filed a motion in the trial court requesting vacation of the December 7 order. The motion contains an “arguments and authorities section” through which relator presents the same constitutional argument it intends this Court to consider in support of its petition for writ of mandamus. The trial court has scheduled an April 4, 2008, hearing of relator’s motion to vacate. Relator filed its petition for writ of mandamus with this Court on March 26 and accompanied it with a request for expedited hearing.
Mandamus is an extraordinary writ that will not issue to resolve disputes that may be addressed by other remedies. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding). Mandamus is not available when the relator possesses an adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Our Supreme Court has noted that the term “adequate” in this context “has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).
As noted, relator’s petition states that the trial court will hear relator’s March 13 motion for vacation of the court’s December 7 order on April 4. Although relator seeks an expedited hearing of its petition in this Court, nothing in its petition suggests that any circumstance facing the parties will change between now and April 4. Relator has not asked for temporary relief. Tex. R. App. P. 52.10. As noted also, the record before us indicates relator will present to the trial court the same contentions on the merits of its motion it is presenting to us. Moreover, no response to relator’s petition has been filed. Under the Rules of Appellate Procedure applicable to original proceedings, were we to find mandamus relief appropriate, we would be unable in any event to grant relator the relief it requests without requesting a response. Tex. R. App. P. 52.4, 52.8(b). And, were we to request a response in this case, we would not expect it to be filed before April 4.
Given the “jurisprudential considerations” described, we find relator possesses an adequate remedy at law by pursuing its motion set for hearing before the trial court on April 4. Prudential, 148 S.W.3d at 136. Accordingly, relator’s motion for oral argument, and relator’s petition for writ of mandamus, are denied.
Per Curiam
ht" and "very scared." That same day, the investigator who spoke with Ruby and took her statement described her as "nervous," "disheveled," "a little nervous," "a little shaky," and "scared" at the time. So, because it was given soon after the assault occurred and while Ruby continued to experience the emotional effects of the attack, the written statement (which Ruby tried to recant at trial) can reasonably be viewed as an excited utterance. See Tex. R. Evid. 803(2) (defining an excited utterance as a statement relating to a startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition); Salley v. State, 25 S.W.3d 878, 880-81 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (holding that the statement, if made while still in the grip of emotion, excitement, fear or pain, is admissible even after an appreciable time had elapsed between the exciting event and the utterance). Being an excited utterance, it was admissible free of any limiting instruction despite its supposed hearsay nature. Tex. R. Evid. 803(2). This is of import because its content, especially that pertaining to appellant's attempt at suffocation, was redundant of Wong's comment about choking. The two terms being synonymous under the circumstances before us (as we concluded above), we cannot say that defense counsel's failure to request an instruction directing the jury to consider Wong's comments solely for impeachment purposes harmed appellant. In other words, the circumstances of record do not create a reasonable probability that but for the purported error the result would have differed. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (so defining the prejudice needed to support a claim of ineffective assistance).
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
1. At trial, Ruby testified she did not know who Nurse Wong was and did not remember saying that.