Ex Parte Ruvisel Einsten Perez Diaz v. .

• Court: Court of Appeals of Texas
• Decided: July 3, 2024
• Docket: 04-23-00435-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00435-CR

EX PARTE Ruvisel Einsten PEREZ DIAZ

From the County Court, Kinney County, Texas Trial Court No. 12808CR Honorable Susan D. Reed, Judge Presiding

PER CURIAM

Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: July 3, 2024

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

Appellant, Ruvisel Einsten Perez Diaz, 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 Perez Diaz’s request, and deny his mandamus petition.

BACKGROUND

Perez Diaz, a noncitizen, was arrested under Operation Lone Star and charged with the

misdemeanor offense of criminal trespass. On January 4, 2023, Perez Diaz 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 21, 2023, the trial court issued an order stating, “the Application is denied

without issuing writ.” Perez Diaz timely filed a notice of appeal. 04-23-00435-CR

On April 5, 2024, we issued an order notifying Perez Diaz 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.

Perez Diaz failed to respond to our order. Perez Diaz did, however, request in his brief that,

if we determine the trial court’s order is not appealable, 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

-2- 04-23-00435-CR

shows that the trial court held any hearings related to Perez Diaz’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 Perez Diaz’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 Perez Diaz’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, Perez Diaz 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 Perez

Diaz’s appeal as a petition for writ of mandamus.

After considering the petition and the record, we deny Perez Diaz’s request for mandamus

relief. See id. at *2–4.

CONCLUSION

Because the trial court’s denial of Perez Diaz’s habeas application was not based on the

merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal for want

1 Perez Diaz 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.” 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 Perez Diaz’s habeas application in this case.

-3- 04-23-00435-CR

of jurisdiction and, at Perez Diaz’s request, treat his appeal as a petition for writ of mandamus.

Finally, we deny without prejudice Perez Diaz’s petition for writ of mandamus. See TEX. R. APP.

P. 52.8(a). Any pending motions are dismissed as moot.

DO NOT PUBLISH

-4-