In Re Mitchell Dean Cochran v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00102-CR

IN RE MITCHELL DEAN COCHRAN

Original Proceeding

From the 54th District Court
McLennan County, Texas
Trial Court No. 2012-20-C2

MEMORANDUM OPINION

On September 12, 2024, we issued an opinion and judgment in this cause. We

grant the motion for rehearing filed by Relator, Mitchell Dean Cochran. We withdraw

our opinion and judgment dated September 12, 2024, and substitute this opinion and its

associated judgment in their place.1

1We originally denied Relator’s petition for writ of mandamus due, in part, to his failure to provide an
adequate record for our review. See TEX. R. APP. P. 52.3(k), 52.7. In his motion for rehearing, Relator
explained that he became aware that the appendix section of his original petition “was in complete
disarray” after our opinion was issued. With his motion for rehearing, Relator provided an updated
appendix that included some of the missing relevant documentation.
Background

This Court affirmed Relator’s convictions and sentences in trial court cause

number 2012-20-C2 on April 16, 2015. See Cochran v. State, No. 10-14-00013-CR, 2015 Tex.

App. LEXIS 3860, at *1-7 (Tex. App.—Waco Apr. 16, 2015, pet. ref’d) (mem. op., not

designated for publication). Our mandate issued on February 16, 2016. See id. On August

15, 2023, Relator filed his “Motion to Compel Production and Delivery of the Attorney-

Client File with Incorporated Motion Upon the State of Texas to Show Cause with

Additional Orders for Production and In Camera Reviews” and “Motion for

Appointment of Counsel” into cause number 2012-20-C2.2 The Honorable Judge Susan

Kelly, District Judge of the 54th Judicial District Court of McLennan County, denied both

motions on December 6, 2023.3 Relator subsequently filed a motion for new trial on the

Client File Motion and Motion for Appointment of Counsel, along with a motion to recuse

Judge Kelly from presiding over his motion for new trial. The recusal motion was

referred to the Honorable Judge Dib Waldrip, Presiding Judge of the Third

Administrative Judicial Region of Texas. Judge Waldrip denied the recusal motion

without a hearing. See TEX. R. CIV. P. 18a(g)(3)(A).

2For ease of reference, we will refer to Relator’s “Motion to Compel Production and Delivery of the
Attorney-Client File with Incorporated Motion Upon the State of Texas to Show Cause with Additional
Orders for Production and In Camera Reviews” as his “Client File Motion.”

3We will refer to Judge Kelly’s order denying Relator’s Client File Motion as the “Client File Order” and
Judge Kelly’s order denying Relator’s “Motion for Appointment of Counsel” as the “Appointment Order.”

In re Mitchell Dean Cochran Page 2
Relator, proceeding pro se, filed a petition for writ of mandamus in this Court on

April 10, 2024. See TEX. GOV’T CODE ANN. § 22.221; TEX. R. APP. P. 52. In his petition,

Relator asks this Court to compel Judge Kelly to vacate the Client File Order and the

Appointment Order, arguing that because the Court of Criminal Appeals has clearly

established that “[t]he client’s file belongs to the client,” Judge Kelly had a ministerial

duty to grant his motions. See In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013).

Relator also asks us to reverse Judge Waldrip’s order denying his motion to recuse Judge

Kelly from presiding over his motion for new trial.

Mandamus Standard

To obtain mandamus relief in a criminal case, a relator must demonstrate that (1)

he has no other adequate remedy at law, and (2) the act sought to be compelled is

ministerial. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). An act is

ministerial if the relator can show a “‘clear right to the relief sought,’ meaning that the

merits of the relief sought are ‘beyond dispute.’” McCann, 422 S.W.3d at 704. It is

Relator’s burden to provide a record that supports granting mandamus relief. See TEX. R.

APP. P. 52.7.

Judge Kelly’s Orders

With regard to the Client File Order and the Appointment Order, we agree that

the orders are void, albeit for a different reason than that advanced by Relator.

In re Mitchell Dean Cochran Page 3
A trial court’s plenary jurisdiction expires “when a case becomes final or is taken

to a higher court.” State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002) (plurality

op.); see also Skinner v. State, 305 S.W.3d 593, 594 (Tex. Crim. App. 2010). When a

conviction has been affirmed on appeal and the mandate has issued, general jurisdiction

is not restored in the trial court. Staley v. State, 420 S.W.3d 785, 795 (Tex. Crim. App. 2013).

“Once general jurisdiction has expired, and absent direction from a higher court, a trial

court can act only if, and to the extent, it is authorized to do so by a specific statutory

source." Skinner, 305 S.W.3d at 594.

Here, Relator did not file his Client File Motion and Motion for Appointment of

Counsel into trial court cause number 2012-20-C2 until several years after the trial court’s

general jurisdiction over the case expired. Further, the mandamus record does not

demonstrate the existence of any currently pending matter that would vest jurisdiction

in the trial court to consider Relator’s motions in cause number 2012-20-C2. See Patrick,

86 S.W.3d at 595. Therefore, on the record before us, the trial court did not have

jurisdiction to rule on Relator’s motions filed in cause number 2012-20-C2.

Mandamus relief is proper when a trial court has issued an order beyond its

jurisdiction. State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987). “If a

trial judge lacks authority or jurisdiction to take a particular action, the judge has a

ministerial duty to refrain from taking that action, to reject or overrule requests that he

take such action, and to undo the action if he has already taken it.” In re Ford, 553 S.W.3d

In re Mitchell Dean Cochran Page 4
728, 732 (Tex. App.—Waco 2018, orig. proceeding); see also State ex rel. Thomas v. Banner,

724 S.W.2d 81, 83 (Tex. Crim. App. 1987) (a trial court has a ministerial duty to vacate an

order entered without authority). By issuing the Client File Order and the Appointment

Order when the trial court had neither general jurisdiction nor a pleading before the court

invoking a legitimate source of special or limited jurisdiction, the Honorable Judge Kelly

violated a ministerial duty. See State ex rel. Ogg, 692 S.W.3d 481, 485-86 (Tex. Crim. App.

2024). “[Respondent] therefore has a ministerial duty to ‘undo’ that violation.” Id.

Accordingly, we conditionally grant the writ of mandamus as to Respondent, the

Honorable Judge Kelly, and direct Judge Kelly to withdraw the Client File Order and the

Appointment Order signed on December 6, 2023.

Judge Waldrip’s Denial of the Motion to Recuse Judge Kelly

In his petition, Relator asks this Court to reverse Judge Waldrip’s order denying

Relator’s recusal motion.4

The rules of civil procedure concerning recusal of judges apply in criminal

cases. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding).

4Relator’s motion was titled “Movant Cochran’s Motion to Disqualify and/or Recuse State District Judge
Susan Kelly From Presiding Over His Motion for New Trial/Rehearing of Void Final Order(s) Signed
December 06, 2023 -Filed December 08, 2023, Attachments – 1 and 2.” Although Relator refers to his motion
as a “motion to disqualify and/or recuse,” he alleged only grounds for recusal within the motion. See TEX.
R. CIV. P. 18b(b)(1) (the judge’s impartiality might reasonably be questioned), 18b(b)(2) (the judge has a
personal bias or prejudice concerning the subject matter or a party). Relator did not allege grounds for
disqualification under Rule 18b(a). See id. at R. 18b(a). Thus, Relator’s reliance on Rule 18a(j)(2), permitting
mandamus review of a denial of a motion to disqualify, is misplaced. See id. at 18a(j)(2).

In re Mitchell Dean Cochran Page 5
However, a trial judge must have a case pending in her court before a party may properly

move to have that judge recused. TEX. R. CIV. P. 18a(a); In re Dunn, No. 07-17-00084-CV,

2017 Tex. App. LEXIS 3127, 2017 WL 1365696, at *2-3 (Tex. App.—Amarillo Apr. 10, 2017,

orig. proceeding) (mem. op.). Here, as noted above, the record before us does not indicate

that Relator’s recusal motion was timely filed in a pending case.5 Therefore, Relator could

not properly seek to recuse Judge Kelly, and Judge Waldrip did not abuse his discretion

in denying Relator’s recusal motion. See id; In re Altschul, No. 10-24-00208-CR, 2024 Tex.

App. LEXIS 9105, 2024 WL 5252057, at *2-3 (Tex. App.—Waco Dec. 30, 2024) (mem. op.

on reh’g) (denying mandamus relief where recusal motion was filed into the underlying

criminal case several years after trial court’s plenary jurisdiction expired).

Accordingly, we deny Relator’s petition for writ of mandamus as to Judge

Waldrip’s order denying Relator’s recusal motion.

Conclusion

We deny the petition for writ of mandamus, in part, as to Relator’s claims against

the Honorable Judge Waldrip’s denial of his motion to recuse Judge Kelly. We

conditionally grant the writ of mandamus, in part, and direct the Honorable Judge Kelly

to withdraw the Client File Order and the Appointment Order in cause number 2012-20-

5 Judge Waldrip provided findings of fact and conclusions of law supporting his decision to deny Relator’s
recusal motion. Among other deficiencies, Judge Waldrip concluded that Relator’s motion was untimely
filed. See TEX. R. CIV. P. 18a(b)(1).

In re Mitchell Dean Cochran Page 6
C2 signed on December 6, 2023. We trust that Judge Kelly will promptly take this action,

and the writ will issue only if the trial court fails to comply with the relief ordered within

fourteen days of the date of this opinion.

STEVE SMITH
Justice

Before Justice Smith
Justice Harris6, and
Justice Davis7
Petition denied in part, granted in part
Opinion delivered and filed March 13, 2025
Do not publish
[OT06]

6 The Honorable Tom Gray, former Chief Justice of this Court, participated as a member of the panel in our
original opinion. He retired on December 31, 2024, and he does not participate in the decision on this
motion for rehearing.

7The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.

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