in Re Everardo Hernandez

• Court: Court of Appeals of Texas
• Decided: June 29, 2012
• Docket: 13-12-00414-CR
• Status: Published

Opinion

NUMBER 13-12-00414-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE EVERARDO HERNANDEZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

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

Relator, Everardo Hernandez, proceeding pro se, filed a petition for writ of

mandamus on June 27, 2012 through which he seeks to compel the trial court to set “a

speedy revocation hearing.” See Carney v. State, 573 S.W.2d 24, 26 (Tex. Crim. App.

1978) (en banc) (“The right to a speedy trial guaranteed by the Constitutions of the

United States and Texas is applicable to probation revocation proceedings.”); Fariss v.

Tipps, 463 S.W.2d 176, 178 (Tex. 1971) (original proceeding) (holding that relator was

entitled to a speedy trial in a probation revocation hearing because a revocation hearing 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). was a criminal prosecution.”); see also Wisser v. State, 350 S.W.3d 161, 164 (Tex.

App.—San Antonio 2011, no pet.)/

To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied. See id.

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) (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. See State ex rel. Young, 236 S.W.3d at 210. First, the

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

2 Procedure. See generally TEX. R. APP. P. 52.3. Second, relator has not demonstrated

that the trial court has been presented with and expressly refused to rule on relator’s

motion for speedy revocation hearing, 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, relator has not shown that he lacks

an adequate remedy by appeal. See, e.g., Wisser, 350 S.W.3d at 154 (handling

allegations regarding the trial court’s failure to grant a speedy revocation hearing on

appeal).

We deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8(a).

PER CURIAM

Do not publish.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

Delivered and filed the 29th day of June, 2012.