in Re Jeronimo Barrientos

Opinion

NUMBER 13-18-00530-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

IN RE JERONIMO BARRIENTOS

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides Memorandum Opinion by Justice Contreras1

Relator Jeronimo Barrientos, proceeding pro se, filed a petition for writ of mandamus in the above cause through which he seeks to compel the trial court “to issue a ruling either granting or denying [relator’s] motion to dismiss for failure to prosecute and violation of speedy trial demand, or in the alternative, motion to revoke probation and impose sentence in absentia and/or motion to reinstate probation.”2

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.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).

Relator has also filed a “Motion for Leave to Proceed In Forma Pauperis” with supporting 2

documentation. We grant relator’s motion.

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 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 a writ of mandamus. 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).

A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding)

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(per curiam); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); Ex parte Bates, 65 S.W.3d 133, 134 (Tex. App.—Amarillo 2001, orig. proceeding). The relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. In re Henry, 525 S.W.3d at 382; In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding).

In this case, the relator has failed to provide a sufficient appendix or record to support his petition for writ of mandamus. See Walker, 827 S.W.2d at 837; see generally TEX. R. APP. P. 52.3. The relator has not shown that the trial court received relator’s motion, was aware of it, and was asked to rule on it. See In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). Moreover, a defendant seeking to compel a dismissal of an indictment on speedy trial grounds has an adequate remedy at law by appeal. See Smith v. Gohmert, 962 S.W.2d 59, 592–93 (Tex. Crim. App. 1998) (orig. proceeding).

The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that the relator has not met his burden to obtain relief. Accordingly, we deny the petition for writ of mandamus. See In re Harris, 491 S.W.3d at 334; In re McCann, 422 S.W.3d at 704.

DORI CONTRERAS

Justice

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

Delivered and filed the 25th day of September, 2018.