in Re Leopoldo Mendietta

• Court: Court of Appeals of Texas
• Decided: July 3, 2014
• Docket: 13-14-00339-CR
• Status: Published

Opinion

NUMBER 13-14-00339-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE LEOPOLDO MENDIETTA

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion Per Curiam1

Relator, Leopoldo Mendietta, proceeding pro se, filed a petition for writ of

mandamus in the above cause on June 23, 2014, through which he seeks to compel the

trial court to set a hearing on relator’s motion to revoke community supervision. We deny

the petition.

To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

the relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. 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. 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. It is clear that the relator must furnish an appendix or 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

mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. First, the petition for writ

of mandamus fails to comply with the Texas Rules of Appellate Procedure. See generally

TEX. R. APP. P. 52.3. Second, relator has not demonstrated that the trial court has been

presented with and expressly refused to rule on relator's motion for speedy revocation

hearing, or that an unreasonable amount of time has passed since the motion was filed.

See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding);

In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); Barnes,

2 832 S.W.2d at 426; accord O'Connor v. First Ct. of App., 837 S.W.2d 94, 97 (Tex.1992)

(orig. proceeding). Third, relator has not shown that he lacks an adequate remedy by

appeal. See, e.g., Wisser v. State, 350 S.W.3d 161, 164 (Tex. App.—San Antonio 2011,

no pet.) (addressing allegations regarding the trial court's failure to grant a speedy

revocation hearing on appeal).

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

mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly, relator’s

petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 3rd day of July, 2014.