in Re Fred Martinez

Opinion

NUMBER 13-18-00481-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

IN RE FRED G. MARTINEZ ____________________________________________________________

On Petition for Writ of Mandamus. ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Chief Justice Valdez 1

Relator Fred G. Martinez, proceeding pro se, filed a petition for writ of mandamus2

in the above cause on September 4, 2018. 3 Through this original proceeding, relator

1 See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions); id. R. 52.8(d)

(“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”). 2 Relator also filed an “Application for Leave of Court to File Writ of Mandamus.” We dismiss relator’s “Application for Leave of Court to File Writ of Mandamus” as moot. The Texas Rules of Appellate Procedure no longer require the relator to file a motion for leave to file an original proceeding. See generally Tex. R. App. P. 52 & cmt. 3 This original proceeding arises from trial court cause number 14-CR-2389-B and joins other

appellate causes arising from this same trial court proceeding. See In re Martinez, No. 13-18-00455-CR, 2018 WL 3999742, at *1 (Tex. App.—Corpus Christi Aug. 21, 2018, orig. proceeding) (mem. op., not 1 seeks to compel the trial court to (1) order the State of Texas, acting by and through the

District Attorney of Nueces County, Texas, to surrender allegedly exculpatory evidence,

and (2) order DNA testing under Chapter 64 of the Texas Code of Criminal Procedure.

See Brady v. Maryland, 373 U.S. 83, 87–88 (1963); see also TEX. CRIM. PROC. CODE ANN.

art. 39.14 (West, Westlaw through 2017 1st C.S.); id. arts. 64.01-.05 (West, Westlaw

through 2017 1st C.S.).

To be entitled to mandamus relief, the 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 purely ministerial act not involving a discretionary or judicial decision. In re Harris,

491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); 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).

It is the 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, the relator must

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

designated for publication); In re Martinez, No. 13-18-00449-CR, 2018 WL _____, at *_ (Tex. App.—Corpus Christi Aug. 20, 2018, orig. proceeding) (mem. op., not designated for publication); In re Martinez, No. 13- 18-00430-CR, 2018 WL 3764219, at *1 (Tex. App.—Corpus Christi Aug. 8, 2018, orig. proceeding) (mem. op., not designated for publication); In re Martinez, No. 13-17-00310-CR, 2017 WL 2665266, at *1 (Tex. App.—Corpus Christi June 20, 2017, orig. proceeding) (mem. op., not designated for publication); Martinez v. State, No. 13-16-00249-CR, 2017 WL 2200299, at *1 (Tex. App.—Corpus Christi Mar. 16, 2017, pet. ref’d) (mem. op., not designated for publication); Martinez v. State, No. 13-15-00084-CR, 2015 WL 1137753, at *1 (Tex. App.—Corpus Christi Mar. 12, 2015, no pet.) (mem. op., not designated for publication) (per curiam).

2 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. As the party seeking relief, the relator has the burden

of providing the Court with a sufficient mandamus record to establish his right to

mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011)

(orig. proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.

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. Accordingly, we deny the petition for writ of mandamus.

/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

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

Delivered and filed the 6th day of September, 2018.