in Re Armando Tijerina

• Court: Court of Appeals of Texas
• Decided: February 15, 2011
• Docket: 13-11-00073-CR
• Status: Published

Opinion

NUMBER 13-11-00073-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ARMANDO TIJERINA

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion Per Curiam1

Relator, Armando Tijerina, pro se, filed a petition for writ of mandamus in the

above cause on February 14, 2011, seeking to compel the trial court to issue rule on

relator’s “motion for reconsideration on additional evidence.” We deny the petition for

writ of mandamus for the reasons stated herein.

First, the petition for writ of mandamus fails to comply with the Texas Rules of

Appellate Procedure. See generally TEX. R. APP. P. 52.3. Specifically, for instance, the

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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). petition lacks both appendix and record. See id. 52.3(k), 52.7. Second, relator has not

demonstrated that the respondent has expressly refused to rule on relator’s motion or

that an unreasonable amount of time has passed since the motion was filed. See In re

Dimas, 88 S.W.3d 349, 351 (Tex. App.–San Antonio 2002, orig. proceeding); In re

Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding); Barnes v.

State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding);

accord O'Connor v. First Ct. of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig.

proceeding). Third, although the pleadings are unclear, it appears that relator may be

attempting to challenge the trial court’s actions pertaining to a post-conviction writ of

habeas corpus. Article 11.07 of the Code of Criminal Procedure provides the exclusive

means to challenge a final conviction. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 5

(Vernon Supp. 2010). Pursuant to that article, only the Texas Court of Criminal Appeals

has jurisdiction to grant post-conviction relief from a final felony conviction. See id.; In

re McAfee, 53 S.W.3d 715, 717-18 (Tex. App.–Houston [1st Dist.] 2001, orig.

proceeding).

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

mandamus, is of the opinion that relator has not shown himself entitled to the relief

sought, and the petition for writ of mandamus should be denied. See TEX. R. APP. P.

52.8. Accordingly, the petition for writ of mandamus is DENIED.

PER CURIAM

Do not publish. See Tex. R. App. P. 47.2(b). Delivered and filed the 15th day of February, 2011.