In Re Kerry L. Burke v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 15, 2025
• Docket: 13-25-00450-CR
• Status: Published

Opinion

NUMBER 13-25-00450-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE KERRY L. BURKE

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Cron and Fonseca Memorandum Opinion by Justice Fonseca1

By pro se petition for writ of mandamus, relator Kerry L. Burke seeks to compel the

trial court to hold a hearing and issue a written ruling on his application for a pretrial writ

of habeas corpus. See TEX. CRIM. PROC. CODE ANN. art. 11.08.

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). 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. 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).

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.”). This burden

includes providing a sufficient record to establish the right to mandamus relief. In re

Schreck, 642 S.W.3d 925, 927 (Tex. App.—Amarillo 2022, orig. proceeding); In re Pena,

619 S.W.3d at 839; see also TEX. R. APP. P. 52.3(k)(1)(A) (delineating the required form

and content for a petition in an original proceeding); id. R. 52.7(a) (providing that the

relator “must file” a record including specific matters).

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

relator’s failure to provide a record, and the applicable law, is of the opinion that relator

2 has not met his burden to obtain relief. Accordingly, we deny the petition for writ of

mandamus.

YSMAEL D. FONSECA Justice

Do not publish.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

Delivered and filed on the 15th day of September, 2025.