in Re Hector Cavazos, Jr.

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 13-14-00443-CR
• Status: Published

Opinion

NUMBER 13-14-00443-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE HECTOR CAVAZOS JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

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

Relator, Hector Cavazos Jr., proceeding pro se, has filed a petition for writ of

mandamus seeking to compel the trial court to order relator’s former criminal defense

counsel to turn over relator’s case files.2 This Court previously affirmed relator’s

conviction on direct appeal of two counts of aggravated sexual assault of a child, a first-

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).

2 Relator also filed a motion for leave to file the petition for writ of mandamus. Relator's motion for

leave to file his petition for writ of mandamus is dismissed 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. degree felony. See Cavazos v. State, No. 13-10-00525-CR, 2011 WL 6917580, at *1

(Tex. App.—Corpus Christi Dec. 29, 2011, no pet.) (mem. op. not designated for

publication).

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 Jud. Dist. Ct. of App. 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,

is of the opinion that relator has not met his burden to obtain relief. First, the petition for

writ of mandamus fails to comply with the Texas Rules of Appellate Procedure. See

generally TEX. R. APP. P. 52.3. Second, relator has not demonstrated that respondent

2 expressly refused to rule on relator’s motion 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 App., 837

S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). Accordingly, the petition for writ of

mandamus is DENIED. See State ex rel. Young, 236 S.W.3d at 210.

PER CURIAM

Do not publish.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

Delivered and filed the 10th day of October, 2014.