NUMBER 13-12-00376-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG ____________________________________________________________
IN RE ROBERTO PEREZ JR. ____________________________________________________________
On Petition for Writ of Mandamus. ____________________________________________________________
NUMBER 13-12-00378-CR
CORPUS CHRISTI - EDINBURG ____________________________________________________________
ROBERTO PEREZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee. ____________________________________________________________
On appeal from the 148th District Court of Nueces County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam1 Roberto Perez Jr., pro se, filed a document that appears to contain both a
petition for writ of mandamus, filed in our cause number 13-12-000376-CR, and a notice
of appeal, filed in our cause number 13-12-00378-CR.2 Both matters arise from trial
court cause number 01-CR-2731-E(S1) in the 148th District Court of Nueces County.
After reforming the judgment to delete a deadly weapon finding, this Court affirmed
Perez’s conviction for manslaughter on direct appeal from this same trial court cause
number. See Perez v. State, 216 S.W.3d 855, 857 (Tex. App.-Corpus Christi 2006, pet.
ref'd).3 As stated herein, we deny the petition for writ of mandamus and dismiss the
appeal for lack of jurisdiction.
I. PETITION FOR WRIT OF MANDAMUS
By a document entitled, in part, “Relator’s Original Proceeding for Writ of
Mandamus to the 148th Judicial District Court for State Forensic Analysis per Article
38.01 § 2,” Perez asserts that he filed requests for forensic testing of the evidence
underlying his conviction by motion on March 19, 2012, by demand for hearing on April
1 See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (distinguishing opinions and memorandum opinions); Id. R. 52.8(d) (“When denying relief [in an original proceeding], the court may hand down an opinion but is not required to do so.”). 2 Perez also filed a “Motion to Reduce the Number of Copies” of any document filed in these matters. We GRANT the motion. 3 The Court has also handled other matters arising from this same trial court cause number. See, e.g., In re Perez, No. 13-08-00555-CR, 2008 Tex. App. LEXIS 7535, at **1–2 (Tex. App.—Corpus Christi Oct. 6, 2008, orig. proceeding) (per curiam, mem. op.) (denying “unclear” petition for writ of mandamus); Ex parte Perez, No. 13-02-00213-CR, 2002 Tex. App. LEXIS 4402, at **1–2 (Tex. App.—Corpus Christi June 20, 2002, no pet.) (per curiam, not designated for publication) (dismissing appeal for want of jurisdiction).
2 2, 2012, and by previous applications for writs of habeas corpus on January 29, 2009
and on August 2, 2011. Perez alleges that the respondent, the Honorable Guy
Williams, Presiding Judge of the 148th District Court of Nueces County, has refused to
hear and rule on Perez’s requests for forensic testing.
To be entitled to mandamus relief, Perez 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 Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007). If Perez fails to meet both of these requirements, then the petition for writ
of mandamus should be denied. See id. It is Perez’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, Perez 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. In this regard, it is
clear that Perez 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).
In the instant case, the petition for writ of mandamus fails to comply with the
foregoing requirements of the Texas Rules of Appellate Procedure. See generally TEX.
R. APP. P. 52.3. Moreover, Perez has not demonstrated that the respondent expressly
3 refused to rule on Perez’s motions or that an unreasonable amount of time has passed
since the motions were 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 v. State, 832 S.W.2d 424, 426 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); accord O'Connor v. First Ct. of Appeals, 837
S.W.2d 94, 97 (Tex. 1992) (orig. proceeding).
The Court, having examined and fully considered the petition for writ of
mandamus and the applicable law, is of the opinion that Perez has not met his burden
to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly,
the petition for writ of mandamus in cause number 13-12-00376-CR is denied. See
TEX. R. APP. P. 52.8(a).
II. NOTICE OF APPEAL
In addition to, and accompanying the foregoing petition for writ of mandamus as
an exhibit, Perez also filed with this Court a “Notice to File Pro Se Petition for Writ of
Mandamus and Appeal” which states that he “appeals the trial court’s refusal to rule on
Motions for State Forensic Analysis, which are pending before the [H]onorable Guy
Williams’ court, [because] his refusal to issue an order or [judgment] has affected
Relator’s right to liberty and [d]ue process and due course of law.”
A defendant's notice of appeal must be filed within thirty days after the trial court
enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). A notice of appeal which
complies with the requirements of Rule 26 is essential to vest the court of appeals with
jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Generally, a
state appellate court only has jurisdiction to consider an appeal by a criminal defendant
4 where there has been a final judgment of conviction. Workman v. State, 170 Tex. Crim.
621, 343 S.W.2d 446, 447 (1961); McKown v.
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NUMBER 13-12-00376-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG ____________________________________________________________
IN RE ROBERTO PEREZ JR. ____________________________________________________________
On Petition for Writ of Mandamus. ____________________________________________________________
NUMBER 13-12-00378-CR
CORPUS CHRISTI - EDINBURG ____________________________________________________________
ROBERTO PEREZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee. ____________________________________________________________
On appeal from the 148th District Court of Nueces County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam1 Roberto Perez Jr., pro se, filed a document that appears to contain both a
petition for writ of mandamus, filed in our cause number 13-12-000376-CR, and a notice
of appeal, filed in our cause number 13-12-00378-CR.2 Both matters arise from trial
court cause number 01-CR-2731-E(S1) in the 148th District Court of Nueces County.
After reforming the judgment to delete a deadly weapon finding, this Court affirmed
Perez’s conviction for manslaughter on direct appeal from this same trial court cause
number. See Perez v. State, 216 S.W.3d 855, 857 (Tex. App.-Corpus Christi 2006, pet.
ref'd).3 As stated herein, we deny the petition for writ of mandamus and dismiss the
appeal for lack of jurisdiction.
I. PETITION FOR WRIT OF MANDAMUS
By a document entitled, in part, “Relator’s Original Proceeding for Writ of
Mandamus to the 148th Judicial District Court for State Forensic Analysis per Article
38.01 § 2,” Perez asserts that he filed requests for forensic testing of the evidence
underlying his conviction by motion on March 19, 2012, by demand for hearing on April
1 See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (distinguishing opinions and memorandum opinions); Id. R. 52.8(d) (“When denying relief [in an original proceeding], the court may hand down an opinion but is not required to do so.”). 2 Perez also filed a “Motion to Reduce the Number of Copies” of any document filed in these matters. We GRANT the motion. 3 The Court has also handled other matters arising from this same trial court cause number. See, e.g., In re Perez, No. 13-08-00555-CR, 2008 Tex. App. LEXIS 7535, at **1–2 (Tex. App.—Corpus Christi Oct. 6, 2008, orig. proceeding) (per curiam, mem. op.) (denying “unclear” petition for writ of mandamus); Ex parte Perez, No. 13-02-00213-CR, 2002 Tex. App. LEXIS 4402, at **1–2 (Tex. App.—Corpus Christi June 20, 2002, no pet.) (per curiam, not designated for publication) (dismissing appeal for want of jurisdiction).
2 2, 2012, and by previous applications for writs of habeas corpus on January 29, 2009
and on August 2, 2011. Perez alleges that the respondent, the Honorable Guy
Williams, Presiding Judge of the 148th District Court of Nueces County, has refused to
hear and rule on Perez’s requests for forensic testing.
To be entitled to mandamus relief, Perez 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 Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007). If Perez fails to meet both of these requirements, then the petition for writ
of mandamus should be denied. See id. It is Perez’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, Perez 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. In this regard, it is
clear that Perez 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).
In the instant case, the petition for writ of mandamus fails to comply with the
foregoing requirements of the Texas Rules of Appellate Procedure. See generally TEX.
R. APP. P. 52.3. Moreover, Perez has not demonstrated that the respondent expressly
3 refused to rule on Perez’s motions or that an unreasonable amount of time has passed
since the motions were 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 v. State, 832 S.W.2d 424, 426 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); accord O'Connor v. First Ct. of Appeals, 837
S.W.2d 94, 97 (Tex. 1992) (orig. proceeding).
The Court, having examined and fully considered the petition for writ of
mandamus and the applicable law, is of the opinion that Perez has not met his burden
to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly,
the petition for writ of mandamus in cause number 13-12-00376-CR is denied. See
TEX. R. APP. P. 52.8(a).
II. NOTICE OF APPEAL
In addition to, and accompanying the foregoing petition for writ of mandamus as
an exhibit, Perez also filed with this Court a “Notice to File Pro Se Petition for Writ of
Mandamus and Appeal” which states that he “appeals the trial court’s refusal to rule on
Motions for State Forensic Analysis, which are pending before the [H]onorable Guy
Williams’ court, [because] his refusal to issue an order or [judgment] has affected
Relator’s right to liberty and [d]ue process and due course of law.”
A defendant's notice of appeal must be filed within thirty days after the trial court
enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). A notice of appeal which
complies with the requirements of Rule 26 is essential to vest the court of appeals with
jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Generally, a
state appellate court only has jurisdiction to consider an appeal by a criminal defendant
4 where there has been a final judgment of conviction. Workman v. State, 170 Tex. Crim.
621, 343 S.W.2d 446, 447 (1961); McKown v. State, 915 S.W.2d 160, 161 (Tex. App.–
Fort Worth 1996, no pet.). Exceptions to the general rule include: (1) certain appeals
while on deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624,
625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to reduce bond,
TEX. R. APP. P. 31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the
denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.--Dallas
1998, no pet.); McKown, 915 S.W.2d at 161.
Our review of the documents before the Court shows that Perez’s conviction has
been affirmed and it does not reveal any other appealable orders entered by the trial
court. The Court, having examined and fully considered the notice of appeal, is of the
opinion that there is not an appealable order and this Court lacks jurisdiction over the
matters herein. Accordingly, the appeal in cause number 13-12-00378-CR is
DISMISSED for lack of jurisdiction.
III. CONCLUSION
We deny the petition for writ of mandamus in cause number 13-12-00376-CR.
See TEX. R. APP. P. 52.8(a). We dismiss the appeal in cause number 13-12-00378-CR
for lack of jurisdiction.
In so handling these causes, we note that article 11.07 of the Texas Code of
Criminal Procedure vests jurisdiction over post-conviction relief from otherwise final
felony convictions in the Texas Court of Criminal Appeals. See TEX. CODE CRIM. PROC.
ANN. art. 11.07 (West Supp. 2011); Board of Pardons & Paroles ex rel. Keene v. Court
of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re Watson,
5 253 S.W.3d 319, 320 (Tex. App.—Amarillo 2008, orig. proceeding). The courts of
appeals have no role in criminal law matters pertaining to proceedings under article
11.07. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 3; 5; Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 242 (Tex. Crim. App. 1991) (orig. proceeding); In re Briscoe,
230 S.W.3d 196 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); In re McAfee,
53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).
Accordingly, to the extent that Perez appears to be attempting to seek relief from an
otherwise final felony conviction, his remedy may be by resort to the Texas Court of
Criminal Appeals.
PER CURIAM
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed this 14th day of June, 2012.