In Re Joseph Diruzzo v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 21, 2023
• Docket: 13-23-00589-CR
• Status: Published

Opinion

NUMBER 13-23-00589-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE JOSEPH DIRUZZO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Peña1

Relator Joseph Diruzzo filed a pro se petition for writ of mandamus through which

he seeks to compel the trial court “to convene a hearing as commanded by the Texas

Court of Criminal Appeals and dismiss the case for lack of subject matter jurisdiction.”

Relator’s petition is premised on a ruling from the Texas Court of Criminal Appeals

regarding relator’s direct appeal from his conviction for illegally practicing medicine. See

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). Diruzzo v. State, 581 S.W.3d 788, 790 & n.1 (Tex. Crim. App. 2019) (remanding to the

trial court for further proceedings and discussing the appropriate procedure to address a

motion to quash that is predicated on a claim that the district court lacked subject matter

jurisdiction over a misdemeanor offense). We note that the court of criminal appeals’

opinion did not require the trial court to dismiss the case. See id. Relator has not filed

either an appendix or a record in support of his contentions in this original proceeding.

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 State ex rel. Young, 236 S.W.3d at 210; 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.”). 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

2 citations to authorities and to the appendix or record. See generally TEX. R. APP. P. 52.3

(governing the form and contents for a petition). Further, the relator must file an appendix

and 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).

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.

See In re Meza, 611 S.W.3d at 388; In re Harris, 491 S.W.3d at 334. Accordingly, 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 21st day of December, 2023.