In Re Cary D. Cantwell v. the State of Texas

Opinion

NUMBER 13-23-00349-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE CARY D. CANTWELL

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Contreras1

Relator Cary D. Cantwell filed a pro se petition for writ of mandamus through which

he asserts that the trial court has failed in its ministerial duty to rule on relator’s application

for writ of habeas corpus.

In a criminal case, to be entitled to mandamus relief, the relator must establish

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). 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);

In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). 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 State ex rel. Young, 236 S.W.3d at 210; In re Pena, 619 S.W.3d 837, 839 (Tex.

App.—Houston [14th Dist.] 2021, orig. proceeding); see also Barnes v. State, 832 S.W.2d

424, 426 (Tex. App.—Houston [1st Dist.] 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.”). In addition to other requirements, the relator must include a statement

of facts and a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the appendix or record. See generally TEX. R. APP. P. 52.3

(governing the form and contents of a petition in an original appellate proceeding seeking

extraordinary relief). Further, the relator must file a record sufficient to support the claim

for mandamus relief. See id. R. 52.7(a) (specifying the required contents for the record);

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

proceeding); In re Rangel, 570 S.W.3d 968, 969 (Tex. App.—Waco 2019, orig.

proceeding).

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

the lack of a record, and the applicable law, is of the opinion that relator has not met his

burden to obtain relief. Accordingly, we deny the petition for writ of mandamus.

DORI CONTRERAS Chief Justice

Do not publish.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

Delivered and filed on the 8th day of August, 2023.