in Re Javier Canales

• Court: Court of Appeals of Texas
• Decided: March 24, 2014
• Docket: 13-14-00174-CR
• Status: Published

Opinion

NUMBER 13-14-00174-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JAVIER CANALES

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion Per Curiam1

Relator, Javier Canales, proceeding pro se, filed a petition for writ of mandamus in

the above cause on March 20, 2014, seeking to compel the trial court to rule on a motion

to vacate or set aside relator’s felony conviction.

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

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). 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 App. at Texarkana, 236

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

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).

Relator has not met his burden to obtain mandamus 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 established that: (1) the motion

was properly filed and has been pending for a reasonable time; (2) the relator requested

a ruling on the motion; and (3) the trial court refused to rule. In re Blakeney, 254 S.W.3d

659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); In re Sarkissian, 243 S.W.3d

860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685

(Tex. App.—San Antonio 2004, orig. proceeding). Relator has not furnished an appendix

2 sufficient to support his claim for relief insofar as relator has not demonstrated that his

pleadings were presented to the respondent and the respondent refused to rule on them.

Third, jurisdiction over post-conviction relief from otherwise final felony convictions rests

with the Texas Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07

(West, Westlaw through 2013 3d C.S.); Board of Pardons & Paroles ex rel. Keene v.

Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re

Watson, 253 S.W.3d 319, 320 (Tex. App.—Amarillo 2008, orig. proceeding). The courts

of appeals have no role in criminal law matters pertaining to proceedings under article

11.07 and have no authority to issue writs of mandamus in connection with such

proceedings. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 3; 5; Ater v. Eighth Court of

Appeals, 802 S.W.2d 241, 242 (Tex. Crim. App. 1991) (orig. proceeding); In re Briscoe,

230 S.W.3d 196 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); In re McAfee,

53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).

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 mandamus relief. See State

ex rel. Young, 236 S.W.3d at 210. Accordingly, relator’s petition for writ of mandamus 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 March, 2014.