in Re Heriberto Hernandez, Relator

MEMORANDUM OPINION

No. 04-12-00454-CR

IN RE Heriberto HERNANDEZ

Original Mandamus Proceeding 1 PER CURIAM

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: August 15, 2012

PETITION FOR WRIT OF MANDAMUS DENIED

On July 30, 2012, relator filed a petition for writ of mandamus, complaining the trial court denied his motion to dismiss appointed counsel. However, in order to be entitled to mandamus relief, relator must establish “(1) the act sought to be compelled is purely ministerial, and (2) that there is no adequate remedy at law.” Benson v. District Clerk, 331 S.W.3d 431, 432 (Tex. Crim. App. 2011). Whether to dismiss appointed counsel is discretionary with the trial court. See Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.). An act that involves the exercise of any discretion is not ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 929 (Tex. Crim. App. 2001). Accordingly, because the act sought to be compelled is not purely ministerial, we conclude the petition for writ of mandamus should be DENIED. See TEX. R. APP. P. 52.8(a).

PER CURIAM

DO NOT PUBLISH