in Re Domingo Vasquez Jr.

• Court: Court of Appeals of Texas
• Decided: September 1, 2016
• Docket: 13-16-00446-CR
• Status: Published

Opinion

NUMBERS 13-16-00445-CR & 13-16-00446-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DOMINGO VASQUEZ JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam1

Relator Domingo Vasquez Jr., proceeding pro se, filed a petition for writ of

mandamus in the above causes on August 10, 2016, seeking to compel the trial court to

rule on and grant relator’s motion for nunc pro tunc judgment.

To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

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). the relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

A remedy at law, though it technically exists, "may nevertheless be so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648–

49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled must be a

ministerial act that does not involve a discretionary or judicial decision. State ex rel.

Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the relator can

show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A

clear right to relief is shown when the facts and circumstances dictate but one rational

decision "under unequivocal, well-settled (i.e., from extant statutory, constitutional, or

case law sources), and clearly controlling legal principles." Bowen v. Carnes, 343 S.W.3d

805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks, 391 S.W.3d at 122.

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

Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.

proceeding) (“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, relator must

include a statement of facts supported by citations to “competent evidence included in the

appendix or record,” and must also provide “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. In this regard, it is clear that relator must furnish an

appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k)

2 (specifying the required contents for the appendix); R. 52.7(a) (specifying the required

contents for the record).

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

and the applicable law, is of the opinion that relator has not met his burden to obtain

mandamus relief for the respondent’s alleged failure to rule on the motion. See State ex

rel. Young, 236 S.W.3d at 210. There is nothing in the limited record before this Court to

establish that relator’s pleadings were presented to the respondent and the respondent

refused to act. See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002,

orig. proceeding). Further, to the extent that relator requests that we compel the trial court

to grant the motion for nunc pro tunc judgment, we note that while we have jurisdiction to

direct the trial court to rule on a motion, we may not tell the court what that decision should

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

In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding).

Accordingly, relator’s petition for writ of mandamus in each of these causes is denied.

See TEX. R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 1st day of September, 2016.