COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN RE: JIMMY LEE SWEED, |
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No. 08-07-00020-CR
AN ORIGINAL PROCEEDING IN MANDAMUS |
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MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS
In his petition and amendment for writ of mandamus, Sweed argues the trial court, during a hearing regarding his 28.01 motion , failed to analyze or properly apply the law correctly because his prior convictions cannot be used to impeach his credibility as a witness. He argues the court misapplied the law since the date of his release from confinement is less than the time period provided by statute. Sweed contends the trial court lacked jurisdiction over his prior conviction in Cause No. 20050D04098 since the conviction was void. He also argues the trial court erred in failing to apply federal law.
In order to obtain relief through a writ of mandamus, a relator must establish: (1) no other adequate remedy at law is available; and (2) that the act he seeks to compel is ministerial. Dickens v. Court of Appeals For Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987)(orig. proceeding). An act is ministerial if it does not involve the exercise of any discretion. State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App. 2001)(orig. proceeding). However, a so-called discretionary function may become ministerial when the facts and circumstances dictate but one rational decision. Buntion v. Harmon, 827 S.W.2d 945, 947 n.2 (Tex.Crim.App. 1992)(orig. proceeding).
The allegations raised in Sweed’s petition relate to his 28.01 motion and the trial court’s hearing. Tex.Code Crim.Proc.Ann. art. 28.01. Attached to Sweed’s petition for writ of mandamus is a copy of “Defendant’s First Motion Pursuant To Texas Code Of Criminal Procedure, Article 28.01 (Vernon’s).” However, the motion is not file stamped and Sweed has not provided this Court with a copy of the transcript from that hearing or the court’s order. Based upon the limited record before us, Sweed has not demonstrated he is entitled to mandamus relief. See Tex.R.App.P. 52.7; 52.8(a). Accordingly, we deny relief.
March 1, 2007
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)