in Re Rene Rivas Jr.

• Court: Court of Appeals of Texas
• Decided: November 13, 2014
• Docket: 13-14-00648-CR
• Status: Published

Opinion

NUMBER 13-14-00648-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE RENE RIVAS JR.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

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

Relator, Rene Rivas Jr., proceeding pro se, filed a petition for writ of mandamus

on November 6, 2014, through which he seeks to compel the trial court to conduct a

hearing and rule on relator’s motion for the appointment of counsel and post-conviction

DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. arts. 64.01, 64.03 (West, Westlaw through 2013 3d C.S.). We

deny the petition for writ of mandamus as stated herein.

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).

1 To be entitled to mandamus relief, a relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Jud.l Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)

(orig. proceeding). If the relator fails to meet both of these requirements, then the petition

for writ of mandamus should be denied. See id. An act is ministerial “when the law clearly

spells out the duty to be performed . . . with such certainty that nothing is left to the

exercise of discretion or judgment.” State ex rel. Healey v. McMeans, 884 S.W.2d 772,

774 (Tex. Crim. App. 1994) (orig. proceeding) (en banc). However, a “discretionary”

function may become “ministerial” when the facts and circumstances dictate but one

rational decision. Buntion v. Harmon, 827 S.W.2d 945, 948 n.2 (Tex. Crim. App. 1992)

(orig. proceeding). In general, a relator must establish that: (1) the trial court has a legal

duty to perform; (2) relator has made a demand for performance; and (3) the trial court

has failed or refused to act. In re Guetersloh, 326 S.W.3d 737, 740 (Tex. App.—Amarillo

2010, orig. proceeding) (per curiam); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—

Amarillo 2001, orig. proceeding) (citing O’Connor v. First Ct. of App., 837 S.W.2d 94, 97

(Tex. 1992) (orig. proceeding)).

A relator bears the burden to properly request and show entitlement to mandamus

relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re

Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding). “Even a

pro se applicant for a writ of mandamus must show himself entitled to the extraordinary

relief he seeks.” Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.]

1992, orig. proceeding). In addition to other requirements, the relator must include a

2 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. In this regard, it is clear that 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).

Relator’s petition for writ of mandamus generally fails to comply with the

requirements of Texas Rule of Appellate Procedure 52 and lacks either an appendix or

record. See id. R. 52.3. Relator has not included with his petition any documentation

showing that he has filed motions pertaining to DNA testing, that he has requested the

trial court to conduct any hearings or issue any rulings pertaining to DNA testing, or that

the trial court has failed or refused to perform a ministerial duty in accordance with such

alleged filings. 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 and all relief requested therein 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 13th day of November, 2014.