in Re Rodney Lee Bigler

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-027 CV ____________________ IN RE RODNEY LEE BIGLER Original Proceeding MEMORANDUM OPINION Rodney Lee Bigler seeks mandamus relief in a criminal case. He requests that we order the respondent judge to set a personal recognizance bond and to set a hearing on a motion to dismiss the indictment and release the defendant from custody. The relator also asks this Court to order the district clerk to set a court date for a hearing on his pro se motions. Bigler also complains that the trial court failed to consider other pre-trial motions filed on December 9, 2005, including a motion to dismiss counsel and proceed pro se or with counsel of the relator's choice. We deny relief. The district clerk is not one of the persons against whom we may issue a writ of mandamus other than to protect our jurisdiction, and the relator has not shown that the writ is necessary to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004). Thus, Bigler is not entitled to mandamus relief against the district clerk. A defendant does not have a right to hybrid representation. Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977)(opin. on reh'g). The trial court has the discretion to refuse to entertain pro se motions filed while the accused is represented by counsel. Busselman v. State, 713 S.W.2d 711, 714 (Tex. App.-Houston [1st Dist.] 1986, no pet.). Because Bigler is represented by counsel, the trial court does not have a ministerial duty to conduct a hearing on the relator's "Motion to Set Hearing Date on Motion to Quash T.C.C.P. 47.01 to Dismiss Indictment/Re-Indictment/Release Defendant from Custody of Montgomery Co. Jail." The relator's claim that the trial court disregarded Bigler's attempted waiver of counsel is more troublesome. A defendant in a criminal case has the right to represent himself. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). When a defendant clearly and unequivocally asserts the right of self-representation, the trial court must admonish the defendant of the dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992). If the defendant persists after being admonished the trial court must allow the accused to represent himself. Id. However, the right must be clearly and unequivocally invoked. Id.; Funderberg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). Bigler contends that he filed a motion titled "Motion for Defendant's Request to Proceed in Pro Se; Motion to Dismiss ... Counsel of Record, Due to Ineffective Assistance of Counsel or in the Alternative Appoint a Counsel of Defendant's Choice." Bigler also claims that a visiting judge hearing a motion for bond reduction the following week would not let Bigler speak on his own behalf. Titles are not always accurate, however, and without seeing Bigler's motion we can only speculate on its contents. We do not have a reporter's record of the bond reduction hearing and the relator does not establish that the judge presiding over that hearing was aware that Bigler desired to represent himself. The record before us in this proceeding does not establish that the relator clearly and unequivocally asserted his right to forego counsel and represent himself. To obtain mandamus relief in a criminal matter, the relator must show that he has no other adequate remedy at law to address the alleged error and that the act the relator seeks to compel is ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001); Dickens v. Second Court of Appeals, 727 S.W.2d 542, 550 (Tex. Crim. App. 1987). The relator has not shown that he is entitled to the relief requested in the petition. See Tex. R. App. P. 52.3(j). The petition for writ of mandamus is denied without prejudice. WRIT DENIED. PER CURIAM Opinion Delivered February 2, 2006 Before McKeithen, C.J., Gaultney and Kreger, JJ.