In Re John D. Pelko v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 21, 2023
• Docket: 13-23-00496-CR
• Status: Published

Opinion

NUMBER 13-23-00496-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE JOHN D. PELKO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Tijerina1

Pro se relator John D. Pelko filed a petition for writ of mandamus seeking to compel

the trial court to (1) confirm receipt of relator’s motion for new trial, and (2) grant relator’s

motion for new trial.

In a criminal case, to be entitled to mandamus relief, the relator must establish

both that the act sought to be compelled is a ministerial act not involving a discretionary

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. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). or judicial decision and that there is no adequate remedy at law to redress the alleged

harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);

In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam);

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) (orig. proceeding).

It is the relator’s burden to properly request and show entitlement to mandamus

relief. See State ex rel. Young, 236 S.W.3d at 210; see also Barnes v. State, 832 S.W.2d

424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“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 and 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.

Further, the relator must file a record sufficient to support the claim for mandamus relief.

See id. R. 52.7(a); In re Pena, 619 S.W.3d 837, 839 (Tex. App.—Houston [14th Dist.]

2021, orig. proceeding); In re Rangel, 570 S.W.3d 968, 969 (Tex. App.—Waco 2019, orig.

proceeding).

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 relief.

2 See In re Meza, 611 S.W.3d at 388. Accordingly, we deny the petition for writ of

mandamus.

JAIME TIJERINA Justice

Do not publish.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

Delivered and filed on the 21st day of November, 2023.