in Re Gerardo Favela Jr.

• Court: Court of Appeals of Texas
• Decided: November 24, 2015
• Docket: 13-15-00547-CR
• Status: Published

Opinion

NUMBERS 13-15-00546-CR & 13-15-00547-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE GERARDO FAVELA, JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Longoria Memorandum Opinion Per Curiam1

Relator, Gerardo Favela, proceeding pro se, filed a motion in this Court seeking

dismissal of his pending criminal charges, or alternatively, to permit him to enter a guilty

plea in absentia and allow an underlying state conviction to run concurrently with his

federal term of imprisonment. This motion arises from trial court cause number

14CR4041-1, docketed as our cause number 13-15-00546-CR, and trial court cause

number 10CR4100-1, docketed as our cause number 13-15-00547-CR. Both trial court

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). causes are currently pending in the County Court at Law Number One of Nueces County,

Texas. Because the pleading filed by relator does not pertain to a pending appeal or

reference an order or judgment subject to appeal, and relator asks us to command a

public officer to perform an act, we construe this pleading as a petition for writ of

mandamus. See generally TEX. R. APP. P. 25.1(a), (d); In re Castle Texas Prod. Ltd.

P'ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler 2006, orig. proceeding) (“The function of

the writ of mandamus is to compel action by those who by virtue of their official or quasi-

official positions are charged with a positive duty to act.”) (citing Boston v. Garrison, 152

Tex. 253, 256 S.W.2d 67, 70 (1953)).

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

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 Apps. 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 Apps. 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

2 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)

(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 in these causes. See State ex rel. Young, 236 S.W.3d at 210.

Accordingly, relator’s petition for writ of mandamus in 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 24th day of November, 2015.