Ex Parte Julio Gonzalez Ramirez v. .

• Court: Court of Appeals of Texas
• Decided: July 3, 2024
• Docket: 04-23-00439-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00439-CR

EX PARTE Julio GONZALEZ-RAMIREZ

From the County Court, Kinney County, Texas Trial Court No. 13223CR Honorable Susan D. Reed, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: July 3, 2024

DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS DENIED

Appellant, Julio Gonzalez-Ramirez, appeals from the denial of his pretrial application for

writ of habeas corpus. We dismiss the appeal for want of jurisdiction, treat the appeal as a petition

for writ of mandamus at Gonzalez-Ramirez’s request, and deny his mandamus petition.

BACKGROUND

Gonzalez-Ramirez, a noncitizen, was arrested under Operation Lone Star and charged with

the misdemeanor offense of criminal trespass. On February 21, 2023, Gonzalez-Ramirez filed an

application for writ of habeas corpus seeking dismissal of the criminal trespass charge because, he

alleged, the State engaged in selective prosecution, in violation of his right to equal protection,

when it decided to charge him. On March 25, 2023, the trial court issued an order stating, “the

Application is denied without issuing writ.” Gonzalez-Ramirez timely filed a notice of appeal. 04-23-00439-CR

On April 10, 2024, we issued an order notifying Gonzalez-Ramirez that it appears we lack

jurisdiction over this appeal and that we would dismiss this appeal unless he filed a response to

our order showing that we have jurisdiction.

Gonzalez-Ramirez filed a response on April 11, 2024, in which he argues that the trial

court’s “order is appealable.” Gonzalez-Ramirez also requests, in the event we determine that we

lack jurisdiction over his appeal, that we treat his appeal as a petition for writ of mandamus.

JURISDICTION

There is no right to an appeal when a trial court refuses to issue a habeas writ or dismisses

or denies a habeas application without ruling on the merits of the applicant’s claims. See Ex parte

Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008); Ex parte Molina Valencia, — S.W.3d

—, No. 04-23-01044-CR, 2024 WL 1642923, at *1 (Tex. App.—San Antonio April 17, 2024, no

pet. h.) (en banc). “Thus, where the record does not show that the trial court ruled on the merits of

the application for writ of habeas corpus, we lack jurisdiction over the appeal.” Molina Valencia,

2024 WL 1642923, at *1 (quoting Ex parte Blunston, No. 04-12-00657-CV, 2013 WL 3874471,

at *1 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem. op., not designated for publication);

citing Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.—Dallas 2001, pet. ref’d); Ex parte Miller,

931 S.W.2d 724, 725 (Tex. App.—Austin 1996, no pet.)).

Here, the trial court did not issue a writ, and the trial court’s order simply states that “the

Application is denied without issuing writ”—language we have previously held does not suggest

a ruling on the merits. E.g., id. at *2 (citing In re Martinez-Jimenez, No. 04-23-00547-CR, 2023

WL 7005866, at *2 (Tex. App.—San Antonio Oct. 25, 2023, orig. proceeding) (mem. op., not

designated for publication); In re Lara Belmontes, 675 S.W.3d 113, 115 (Tex. App.—San Antonio

2023, orig. proceeding)). Further, no reporter’s record has been filed, and nothing in the record

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shows that the trial court held any hearings related to Gonzalez-Ramirez’s habeas application or

the merits thereof or otherwise considered any evidence related to the application.

Consequently, nothing in our review of the entire record reflects that the trial court

considered or expressed an opinion on the merits of Gonzalez-Ramirez’s habeas claims. 1 See id.;

Ex parte Garcia, 683 S.W.3d 467, 473 (Tex. App.—San Antonio 2023, no pet.) (en banc). We

therefore conclude that the trial court did not rule on the merits of Gonzalez-Ramirez’s habeas

application, and we lack jurisdiction to review his appeal. See Villanueva, 252 S.W.3d at 394;

Molina Valencia, 2024 WL 1642923, at *2; Garcia, 683 S.W.3d at 473.

REQUEST TO TREAT HABEAS APPEAL AS A MANDAMUS PETITION

We may, in certain circumstances, treat an appeal as a petition for writ of mandamus, if

specifically requested to do so by the appellant. See Molina Valencia, 2024 WL 1642923, at *2.

As stated above, Gonzalez-Ramirez specifically requests that we construe his appeal as a

mandamus petition if we determine the trial court’s order is not appealable. We will therefore treat

Gonzalez-Ramirez’s appeal as a petition for writ of mandamus.

After considering the petition and the record, we deny Gonzalez-Ramirez’s request for

mandamus relief. See id. at *2–4.

1 Gonzalez-Ramirez argues in his appellate brief that the trial judge held a hearing and heard testimony on an identical claim in another case in a different county and that the hearing in the other case “likely informed her denial in this case.” Similarly, Gonzalez-Ramirez argues in his April 11, 2024 response to our April 10, 2024 order that the trial court’s “order is appealable because . . . the lower court has previously considered the merits of the exact same claim dozens of times in other Operation Lone Star cases.” We, however, “may not consider factual assertions that are outside the record.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); see Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996) (“It is a long standing principle that we cannot review contentions which depend upon factual assertions outside of the record.”). Nor may we consider evidence from the record of another case, unless we take judicial notice of our own records from “the same or related proceedings involving same or nearly same parties.” Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987). Therefore, we may not consider the records from other cases in determining whether the trial court ruled on the merits of Gonzalez-Ramirez’s habeas application in this case.

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CONCLUSION

Because the trial court’s denial of Gonzalez-Ramirez’s habeas application was not based

on the merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal

for want of jurisdiction and, at Gonzalez-Ramirez’s request, treat his appeal as a petition for writ

of mandamus. Finally, we deny without prejudice Gonzalez-Ramirez’s petition for writ of

mandamus. See TEX. R. APP. P. 52.8(a). Any pending motions are dismissed as moot.

DO NOT PUBLISH

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