In Re Javier Ovidio Perez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 19, 2023
• Docket: 04-23-00032-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION

No. 04-23-00032-CR

IN RE Javier Ovidio PEREZ

Original Proceeding 1

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

Delivered and Filed: April 19, 2023

PETITION FOR WRIT OF MANDAMUS DENIED

On January 12, 2023, relator filed a petition for writ of mandamus. Relator also filed a

motion for stay of the underlying proceedings pending final resolution of the petition for writ of

mandamus, which this court granted in part on January 13, 2023.

For mandamus relief in a criminal case, a relator has the burden to show the trial court

violated a ministerial duty and there is no adequate remedy at law. See 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 trial court has a ministerial duty to rule on a properly filed and timely presented

motion. See id. However, a relator has the burden of providing this court with a sufficient record.

See TEX. R. APP. P. 52.7(a)(1). A relator must provide the court of appeals with a record showing

1 This proceeding arises out of Cause No. 10850CR, styled State of Texas v. Javier Ovidio Perez, pending in the County Court, Kinney County, Texas, the Honorable Todd Alexander Blomerth presiding. 04-23-00032-CR

the motion at issue was properly filed, the trial court was made aware of the motion, and the motion

has not been ruled on by the trial court for an unreasonable time period. See In re Mendoza, 131

S.W.3d 167, 167–68 (Tex. App.—San Antonio 2004, orig. proceeding); Barnes v. State, 832

S.W.2d 424, 426–27 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).

Here, the record contains file-stamped copies of relator’s application for writ of habeas

corpus and motion for continuance. Additionally, the record provides evidence of relator’s efforts

to bring his filings to the attention of the trial court. However, relator did not provide this court

with a record or authority indicating he has been waiting for a ruling for an unreasonable time. 2

See id. Based on the record before us, relator has not satisfied his mandamus burden. Accordingly,

the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a). The stay imposed on

January 13, 2023 is lifted.

DO NOT PUBLISH

2 We note relator filed an email from the trial court’s court coordinator and argues the email constitutes a ruling on his motion for continuance. Relator did not provide authority to support this argument. See TEX. R. APP. P. 52.3(h).

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