in Re Jose Arellano

• Court: Court of Appeals of Texas
• Decided: February 6, 2023
• Docket: 13-23-00044-CR
• Status: Published

Opinion

NUMBER 13-23-00044-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE JOSE ARELLANO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Justices Benavides, Tijerina, and Peña Memorandum Opinion by Justice Peña1

Relator Jose Arellano filed a pro se petition for writ of mandamus in the above-

referenced cause through which he asserts that the trial court has abused its discretion

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. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (explaining the differences between opinions and memorandum opinions). because it refuses to rule on relator’s pending motions, or, stated otherwise, has

“refuse[d] to exercise power it is required to exercise.”2

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

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 id.; In re Pena, 619 S.W.3d 837, 839 (Tex.

App.—Houston [14th Dist.] 2021, orig. proceeding); 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.”).

To obtain mandamus relief for the trial court’s refusal to rule on a motion, a relator

must establish: (1) the motion was properly filed and has been pending for a reasonable

2 Relator’s petition for writ of mandamus arises from trial court cause number 06-CR-770-E in the 357th District Court of Cameron County, Texas. We previously affirmed relator’s conviction in his direct appeal from that cause number. See Arellano v. State, No. 13–07–00356–CR, 2009 WL 942896, at *1 (Tex. App.—Corpus Christi–Edinburg Jan. 8, 2009, pet. ref’d) (mem. op., not designated for publication) (affirming appellant’s judgment of conviction for three counts of intoxication manslaughter and one count of intoxication assault); see also Arellano v. State, No. 13-18-00672-CR, 2019 WL 303050, at *1 (Tex. App.— Corpus Christi–Edinburg Jan. 24, 2019, no pet.) (mem. op., not designated for publication) (dismissing an appeal for want of jurisdiction where appellant contended merely that “the trial court was ‘indifferent’ to his request for DNA testing”); In re Arellano, No. 13-18-00248-CR, 2018 WL 2148761, at *1 (Tex. App.— Corpus Christi–Edinburg May 9, 2018, orig. proceeding) (mem. op., not designated for publication) (denying mandamus relief regarding relator’s contention that the trial court’s nunc pro tunc judgment was void).

2 time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to

rule. In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.—Corpus

Christi–Edinburg 2014, orig. proceeding); In re Craig, 426 S.W.3d 106, 106–07 (Tex.

App.—Houston [1st Dist.] 2012, orig. proceeding) (per curiam); In re Chavez, 62 S.W.3d

225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Stated otherwise, a 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 Pete, 589 S.W.3d 320, 321 (Tex. App.—Houston [14th Dist.] 2019, orig.

proceeding) (per curiam). The relator must show that the trial court received, was aware

of, and was asked to rule on the motion. In re Blakeney, 254 S.W.3d 659, 661 (Tex.

App.—Texarkana 2008, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex.

App.—Amarillo 2003, orig. proceeding). In this regard, merely filing a document with the

district clerk neither imputes the clerk’s knowledge of the filing to the trial court nor

equates to a request that the trial court rule on the motion. In re Pete, 589 S.W.3d at 322;

In re Craig, 426 S.W.3d at 107.

Whether a reasonable time for the trial court to act has lapsed is dependent upon

the circumstances of each case. See In re Blakeney, 254 S.W.3d at 662; In re Chavez,

62 S.W.3d at 228. The test for determining what time period is reasonable is not subject

to exact formulation, and no “bright line” separates a reasonable time period from an

unreasonable one. See In re Mesa Petroleum Partners, LP, 538 S.W.3d 153, 157 (Tex.

App.—El Paso 2017, orig. proceeding); In re Greater McAllen Star Props., Inc., 444

S.W.3d at 748; In re Blakeney, 254 S.W.3d at 661; In re Chavez, 62 S.W.3d at 228. We

examine a “myriad” of criteria, including the trial court’s actual knowledge of the motion,

3 its overt refusal to act, the state of the court’s docket, and the existence of other judicial

and administrative matters which must be addressed first. See In re Greater McAllen Star

Props., Inc., 444 S.W.3d at 748–49; In re Blakeney, 254 S.W.3d at 661; In re Chavez, 62

S.W.3d at 228–29.

The Court, having examined and fully considered the petition for writ of mandamus,

the record provided, and the applicable law, is of the opinion that relator has not met his

burden to obtain relief. Here, relator has provided this Court with copies of the relevant

motions which are at issue in this original proceeding, but the motions are not file-

stamped, and relator has not included any documentation to show that the trial court

received, was aware of, and was asked but refused to rule on the motions. Accordingly,

relator has not established the right to mandamus relief. We deny the petition for writ of

mandamus.

L. ARON PEÑA JR. Justice

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

Delivered and filed on the 6th day of February, 2023.