In Re MacArio Rincon v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 26, 2024
• Docket: 13-24-00281-CR
• Status: Published

Opinion

NUMBER 13-24-00281-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE MACARIO RINCON

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva Memorandum Opinion by Justice Benavides1

This Court handed down its memorandum opinion in this matter on May 29, 2024.

See In re Rincon, No. 13-24-00281-CR, 2024 WL 2760479, at *1 (Tex. App.—Corpus

Christi–Edinburg May 29, 2024, orig. proceeding) (mem. op., not designated for

publication). Relator Macario Rincon has now filed a motion for rehearing. We deny

relator’s motion for rehearing as moot, but we withdraw our memorandum opinion of May

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). 29,2024, and issue this memorandum opinion in its stead in order to correct a clerical

error in our original memorandum opinion.

Relator filed a pro se petition for writ of mandamus in this Court through which he

asserts that an “enhancement” on his August 26, 2019 judgment of conviction for

aggravated assault with a deadly weapon and unlawful restraint is illegal and void. See

TEX. PENAL CODE ANN. §§ 22.02(a)(2) (aggravated assault with a deadly weapon),

20.02(c)(2)(a) (unlawful restraint).

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.—

2 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), 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,

is of the opinion that relator has not met his burden to obtain mandamus relief. Further,

we note that the exclusive method for a collateral attack on a final felony conviction is

through a writ of habeas corpus filed with the Texas Court of Criminal Appeals. See TEX.

CODE CRIM. PROC. ANN. art. 11.07; Ater v. Eighth Ct. of Apps., 802 S.W.2d 241, 243 (Tex.

Crim. App. 1991) (orig. proceeding) (“We are the only court with jurisdiction in final post-

conviction felony proceedings.”); see also Calton v. Schiller, 498 S.W.3d 247, 252 (Tex.

App.—Texarkana 2016, pet. denied). Accordingly, we deny the petition for writ of

mandamus.

GINA M. BENAVIDES Justice

Do not publish.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

Delivered and filed on the 26th day of June, 2024.