In Re Alberto Gutierrez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 12, 2025
• Docket: 13-25-00318-CR
• Status: Published

Opinion

NUMBER 13-25-00318-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE ALBERTO GUTIERREZ

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Chief Justice Tijerina1

Relator Alberto Gutierrez filed a pro se petition for writ of mandamus through which

he seeks to compel the trial court 2 to rule on his motions for DNA testing and the

appointment of counsel in cause number 22-10-13,939 in the 24th District Court of DeWitt

County, Texas. See TEX. CODE CRIM. PROC. ANN. arts. 64.01–.05 (governing motions for

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). 2 We note that relator seeks mandamus relief against the Honorable Jack Marr; however, Judge

Marr retired and is no longer on the bench. The current judge of the 24th District Court of DeWitt County, Texas, is the Honorable Lisa Harvey-Moore. See id. R. 52.2. forensic DNA testing). Relator previously filed a direct appeal from this same cause

number, and we modified the judgment and affirmed his conviction. See Gutierrez v.

State, No. 13-23-00360-CR, 2024 WL 1787905, at *1 (Tex. App.—Corpus Christi–

Edinburg Apr. 25, 2024, no pet.) (mem. op., not designated for publication).

“Mandamus is intended to be an extraordinary remedy, available only in limited

circumstances.” State ex rel. Wice v. Fifth Jud. Dist. Ct. of Apps., 581 S.W.3d 189, 193

(Tex. Crim. App. 2018) (orig. proceeding). In a criminal case, the relator must establish

both that the act sought to be compelled is a ministerial act, not involving a discretionary

or judicial decision, and that there is no adequate remedy at law to redress the alleged

harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);

In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam).

If the relator fails to meet both requirements, then the petition for writ of mandamus should

be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d

207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

It is the relator’s burden to properly request and show entitlement to mandamus

relief. See In re Schreck, 642 S.W.3d 925, 927 (Tex. App.—Amarillo 2022, orig.

proceeding); In re Pena, 619 S.W.3d 837, 839 (Tex. App.—Houston [14th Dist.] 2021,

orig. proceeding). This burden includes providing a sufficient record to establish the right

to mandamus relief. In re Schreck, 642 S.W.3d at 927; In re Pena, 619 S.W.3d at 839;

see also TEX. R. APP. P. 52.3(k) (delineating the required contents for the appendix in an

original proceeding), R. 52.7(a) (providing that the relator “must file” a record including

specific matters); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.]

2 1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus

must show himself entitled to the extraordinary relief he seeks.”).

“If a party properly files a motion with the trial court in a criminal case, the court

has a ministerial duty to rule on the motion within a reasonable time after the motion has

been submitted to the court for a ruling or after the party has requested a ruling.” In re

Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). A

relator seeking relief for the failure to rule must establish that the trial court: (1) had a legal

duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused

to rule on the motion within a reasonable time. In re Pete, 589 S.W.3d 320, 321 (Tex.

App.—Houston [14th Dist.] 2019, orig. proceeding) (per curiam); In re Craig, 426 S.W.3d

106, 106–07 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding) (per curiam); In re

Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). The relator

must show that the trial court received, was aware of, and was asked to rule on the

motion. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.

proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig.

proceeding). Merely filing a document with the district clerk neither imputes the clerk’s

knowledge of the filing to the trial court nor equates to a request that the trial court rule

on the motion. In re Pete, 589 S.W.3d at 322; In re Craig, 426 S.W.3d at 107. Whether a

reasonable period has elapsed is dependent on the circumstances of each case. In re

Black, 640 S.W.3d 894, 897 (Tex. App.—Amarillo 2022, orig. proceeding) (per curiam).

The Court, having examined and fully considered the petition for writ of mandamus,

the limited record provided, and the applicable law, is of the opinion that relator has not

3 met his burden to obtain relief. Here, relator has not met his burden to establish that the

trial court was asked to rule and failed or refused to rule within a reasonable time. See In

re Pete, 589 S.W.3d at 321; In re Craig, 426 S.W.3d at 106–07. Accordingly, relator has

not established the right to mandamus relief. We deny the petition for writ of mandamus.

JAIME TIJERINA Chief Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 12th day of June, 2025.