Petition for Writ of Mandamus and Writ of Prohibition Dismissed in Part and
Denied in Part, Motion to Stay Proceedings Denied as Moot, and
Memorandum Opinion filed August 12, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00446-CR
NO. 14-14-00447-CR
IN RE KHAI LE, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS AND WRIT OF PROHIBITION
County Criminal Court at Law No. 13
Harris County, Texas
Trial Court Cause No. 1881713
MEMORANDUM OPINION
On June 11, 2014, relator Khai Le filed a petition for writ of mandamus and
writ of prohibition in this court. See Tex. Gov’t Code § 22.221; see also Tex. R.
App. P. 52. In the petition, relator seeks relief by a writ of mandamus to compel
the Honorable Don Smyth, presiding judge of the County Criminal Court at Law
Number 13 of Harris County, to vacate a directive issued by the Harris County
District Clerk purportedly recalling the entry of an order dismissing the underlying
proceedings, and also to direct dismissal of the underlying proceedings. Relator
further seeks relief by a writ of prohibition to prevent Judge Smyth, the Harris
County Community Supervision and Corrections Department, and the Harris
County District Clerk’s Office from taking any further action in the underlying
proceedings. Also on June 11, 2014, relator filed a motion for a temporary stay of
the underlying proceedings, pending disposition of her petition by this court. We
dismiss relator’s petition in part, deny relator’s petition in part, and deny as moot
relator’s motion to stay proceedings.
I. BACKGROUND
On March 2, 2013, relator Khai Le was charged by information with the
class B misdemeanor offense of theft. The case was docketed under cause number
1881713 and assigned to County Criminal Court at Law Number 13 of Harris
County. Relator pleaded guilty to the offense, and on March 8, 2013, the trial court
entered an order of deferred adjudication, placing relator on community
supervision for a period of 18 months. As a condition of relator’s community
supervision, she was required to not commit any further offenses.
On September 30, 2013, during the period of relator’s community
supervision, relator was charged by information with a new class B misdemeanor
offense of theft. The new charge was docketed under cause number 1921669 and
assigned to County Criminal Court at Law Number 13 as well. Because relator was
charged with a new offense, the State filed a motion to adjudicate guilt in the first
case, cause number 1881713.
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Relator apparently reached a plea bargain with the State (the exact details of
which are unknown to this court) and accordingly pleaded guilty in the second
case, cause number 1921669, on February 18, 2014. The trial court entered a final
judgment of conviction in that case the same day.
Also on February 18, 2014, the State filed a motion to dismiss the first case,
cause number 1881713. The reason stated for the motion was that relator was
convicted in the second case, cause number 1921669. Importantly, the motion to
dismiss did not state it was limited only to the State’s motion to adjudicate guilt.
The trial court granted the State’s motion the same day, issuing an order that reads:
“[I]t is, therefore, ORDERED, ADJUDGED, and DECREED that said above
entitled and numbered cause be and the same is hereby dismissed.” 1
On April 15, 2014—nearly two months after the first case was dismissed—
the Harris County District Clerk issued a document in cause number 1881713 titled
“COURT DIRECTIVE: GENERAL INFORMATION / RECALL.” The document
states: “BY THE ORDER OF THE COURT, the following activity is directed in
the above styled and numbered cause: . . . RECALL C87 ACTIVITY DISM
OTHER dated[]02/18/14, for the following reason: ENTERED IN ERROR.”
Relator asserts in her petition that contemporaneously with the issuance of the
recall directive, she was contacted by the Harris County Community Supervision
and Corrections Department and informed that she remains subject to the terms of
community supervision in cause number 1881713.
1
The Honorable James Anderson was sitting as a visiting judge in Court Number 13 on
February 18, 2014, and, therefore, signed relator’s plea and judgment in cause number 1921669
and signed the order of dismissal in cause number 1881713.
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II. STANDARD OF REVIEW
To be entitled to mandamus relief with respect to a criminal law matter,
relator must show that she has no adequate remedy at law to redress her alleged
harm, and that what she seeks to compel is a ministerial act. In re State ex rel.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). “With
respect to the requirement that the act sought is purely ministerial, the relator must
have a ‘clear right to the relief sought,’ meaning that the merits of the relief sought
are ‘beyond dispute.’” In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App.
2013) (orig. proceeding). “A clear right to relief is shown when the facts and
circumstances dictate but one rational decision ‘under unequivocal, well-settled
. . . , and clearly controlling legal principles.’” Weeks, 391 S.W.3d at 122 (quoting
Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) (orig.
proceeding)). With respect to the lack of an adequate remedy requirement,
“potential review at a later time is not always or automatically an adequate remedy:
‘In some cases, a remedy at law may technically exist; however, it may
nevertheless be so uncertain, tedious, burdensome, slow, inconvenient,
inappropriate, or ineffective as to be deemed inadequate.’” Greenwell v. Court of
Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648–49 (Tex. Crim.
App. 2005) (orig. proceeding) (quoting Smith v. Flack, 728 S.W.2d 784, 792 (Tex.
Crim. App. 1987) (orig. proceeding)).
“The line between writs of mandamus and prohibition is often thin . . . .”
Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex. Crim. App. 1980) (orig.
proceeding). “The essential difference between the writ of prohibition and the writ
of mandamus is that the former issues to prevent the commission of a future act
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whereas the latter operates to undo or nullify an act already performed . . . .” State
ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985) (orig.
proceeding)). Because of the corresponding nature of the writs, “[t]he standards for
mandamus and prohibition relief are essentially the same.” Simon v. Levario, 306
S.W.3d 318, 320 n.3 (Tex. Crim. App. 2009) (orig. proceeding). Therefore,
“prohibition relief is available only if the relator shows that he has a clear right to
the relief sought and no other adequate legal remedy is available.” McCann, 422
S.W.3d at 704.2
III. ANALYSIS
As an initial matter, relator seeks relief in part against the Harris County
Community Supervision and Corrections Department and the Harris County
District Clerk’s Office. This court has jurisdiction to grant mandamus or
prohibition relief against officials of either office only where issuance of the writ is
necessary to enforce our jurisdiction. See Tex. Gov’t Code § 22.221(a), (b); see
also In re Z.Q., No. 14-12-01109-CV, 2013 WL 55991, *1 (Tex. App.—Houston
[14th Dist.] Jan. 3, 2013, orig. proceeding) (mem. op., per curiam); cf. Hinojosa v.
Tarrant Cnty., 355 S.W.3d 812, 816 (Tex. App.—Amarillo 2011, no pet.) (“A
district court possesses mandamus jurisdiction over county officials.”). Relator
offers no reason why issuance of a writ of mandamus or writ of prohibition against
any official of these offices is necessary to enforce our jurisdiction, and we
otherwise are not aware of any reason. Accordingly, we dismiss relator’s petition
2
The Court of Criminal Appeals occasionally may look to decisions of the Supreme
Court of Texas for guidance in this area of the law. See Perkins v. Court of Appeals for the Third
Supreme Judicial Dist. of Tex., 738 S.W.2d 276, 285 (Tex. Crim. App. 1987) (orig. proceeding).
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for want of jurisdiction as it pertains to the Harris County Community Supervision
and Corrections Department and the Harris County District Clerk’s Office.
In its February 18, 2014 order, the trial court dismissed the underlying
proceedings. Judge Smyth suggests in his response that the State moved to dismiss
only the motion to adjudicate guilt—and, by inference, the trial court dismissed
only the motion to adjudicate—citing to a docket sheet included as an appendix to
his response with a handwritten notation on it that reads, “DISM MAJ.” Neither
the State’s motion to dismiss nor the trial court’s corresponding order on that
motion anywhere states that dismissal was limited only to the motion to adjudicate.
Rather, both the motion and the order are unconditional in requesting and ordering,
respectively, the dismissal of cause number 1881713. The text of the trial court’s
order is controlling. An inconsistent docket sheet notation does not override the
effect of the order. See Haut v. Green Café Mgmt., Inc., 376 S.W.3d 171, 178 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (“Entries on docket sheets may not be
used to contradict trial court orders and are not generally considered to be trial
court orders or findings.”); Hooper v. Chittaluru, 222 S.W.3d 103, 109 n.2 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied) (“We generally may not consider
docket entries because they are only made for the clerk’s convenience and are
usually unreliable.”) (internal quotations omitted).
By issuing the February 18, 2014 order dismissing cause number 1881713,
the trial court divested itself of jurisdiction over that matter:
It is well settled that when a trial court empowered with jurisdiction
over a criminal case sustains a motion to dismiss the indictment or
information, the person accused thereunder is, in law, discharged from
the accusation against him; there is, concomitant to such dismissal, no
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case pending against the accused and, accordingly, no jurisdiction
remaining in the dismissing court.
Garcia v. Dial, 596 S.W.2d 524, 528 (Tex. Crim. App. [Panel Op.] 1980) (orig.
proceeding); see also Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009)
(“[S]ubject-matter jurisdiction requires both a general grant of authority to the trial
court and a charging instrument that invokes that jurisdiction over the particular
case.”); Smith v. State, 801 S.W.2d 629, 631 n.1 (Tex. App.—Dallas 1991, no pet.)
(“We perceive no meaningful or substantive distinction between dismissal of a
criminal case and dismissal of an indictment or information in a criminal case.”).
Without jurisdiction, a trial court generally would not have any continuing
authority to act in a case. See, e.g., State v. Klein, 224 S.W.2d 250, 252 (Tex. Crim.
App. 1949) (“For a court to act, it must have jurisdiction to do so. This is
fundamental.”). Thus, if a court issues a substantive order or judgment in the
absence of jurisdiction, such an action usually will be void. See, e.g., Gonzales v.
State, 353 S.W.3d 826, 830 n.4 (Tex. Crim. App. 2011); see also State v. Patrick,
86 S.W.3d 592, 595 (Tex. Crim. App. 2002) (plurality op.) (orig. proceeding)
(“Without jurisdiction, the trial court has no power to act. Consequently, a source
of jurisdiction must be found to authorize the trial court’s orders.”).
Relator, however, has not demonstrated her entitlement to relief, because she
has not shown that the trial court is continuing to assert jurisdiction over cause
number 1881713. “The relator generally must bring forward all that is necessary to
establish a claim for relief.” In re Potts, 399 S.W.3d 685, 686 (Tex. App.—
Houston [14th Dist.] 2013, orig. proceeding); see also Tex. R. App. P.
52.3(k)(1)(a), 52.7(a)(1). The only document relator includes in her appendix that
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post-dates the trial court’s February 18, 2014 order of dismissal—and,
consequently, the only document in the appendix that could demonstrate a
continued assertion of jurisdiction by the trial court after the court’s jurisdiction
expired—is the recall directive issued on April 15, 2014. By itself, however, the
recall directive is insufficient for relator to carry her burden.
Relator asserts that the recall directive effectively reinstated the dismissed
case in cause number 1881713. That assertion is not clearly substantiated by the
vague wording of the directive. And although Judge Smyth acknowledges in his
response that the District Clerk issued the recall directive, he does not adopt
relator’s characterization of that document as reinstating a dismissed case.
Moreover, the recall directive does not indicate that the trial court has taken any
other action in cause number 1881713 following the February 18, 2014 order of
dismissal, and Judge Smyth does not concede in his response to have taken any
other action following dismissal of the case. In sum, the only record evidence
provided by relator in support of her request for mandamus and prohibition relief is
insufficient to demonstrate that the trial court has asserted or will assert jurisdiction
over cause number 1881713 after its February 18, 2014 order dismissing that case.
Accordingly, relator is not entitled to relief on the record before this court.
Although we deny relator’s petition based on the record before us, it is
without prejudice to relator seeking appropriate relief in the future if she believes
the trial court is acting without jurisdiction.
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IV. CONCLUSION
For the foregoing reasons, we dismiss in part and deny in part relator’s
petition for writ of mandamus and writ of prohibition. We also deny as moot
relator’s motion for a temporary stay of the underlying proceedings.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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