in Re Tito Castro

• Court: Court of Appeals of Texas
• Decided: August 11, 2021
• Docket: 10-21-00189-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00189-CR

IN RE TITO CASTRO

Original Proceeding

From the 66th District Court Hill County, Texas Trial Court No. F068-18

MEMORANDUM OPINION

Tito Castro sent what can best be described as a brief which was received by the Court on

July 14, 2021. No appeal related to the brief has been, or is now, pending on the Court’s docket.

The Court, sua sponte, inquired of the trial court clerk and obtained a copy of the trial

court’s judgment and plea papers for a judgment entered and signed on August 28, 2018. The

judgment evidenced a conviction for the first-degree felony offense of “Possession of Controlled

Substance PG1>1G<4G” [penalty group 1, greater than 1 gram, less than 4 grams], with two

enhancements. It also reflects that Castro pled guilty to the enhancements and the charged offense

and was sentenced to 40 years in prison. The plea papers, consisting of 9 pages, were signed by

Castro in eight separate places. One of the waivers in the plea papers was a waiver of the right to

appeal; nevertheless, the certification of right to appeal indicates that “the defendant has waived

the right of appeal as to guilt.” The italicized provision is handwritten on what is otherwise a

printed form. In the document, Castro refers to himself as an appellant but also refers to the 66th District

Court of Hill County as the “respondent.” Throughout the document, Castro consistently criticizes

Judge Harris for failing to rule on Castro’s post-trial “Motion for an Out of Time Time Reduction

or Modification of Original Plea Bargain Agreement.” He repeatedly asserts that this motion was

necessary after he was promised a twenty-year sentence if he pled guilty but received a forty-year

sentence, instead. He also requests that this Court order Judge Harris to grant Castro the relief he

requests.

After a careful review of the document presented, and based on the fact that we did not

have an appeal pending in this court related to this conviction, we have determined that Castro

seeks a mandamus against the Honorable Lee Harris, Judge of the 66th District Court of Hill

County. As a petition for writ of mandamus, there are procedural problems with the document,

such as no service on the trial court judge, as the respondent, and no service on the State, as the

real-party-in-interest, no certification, no record, and no certified or sworn-to copy of the order or

orders complained of as required by the Rules of Appellate Procedure. See TEX. R. APP. P. 9.5,

52.3(j), (k)(1)(A), and 52.7. However, to expedite this decision, we use Rule 2 to suspend the

operation of these rules. TEX. R. APP. P. 2.

Mandamus is an extraordinary remedy and is warranted only when the trial court clearly

abused its discretion and the relator has no other adequate remedy. In re Murrin Bros. 1885, Ltd.,

603 S.W.3d 53, 56-57 (Tex. 2019) (orig. proceeding). Castro has the burden to prove both of these

requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per

curiam). Based on what is before us, Castro has not met his burden.

The trial court's duty to rule on a party's motion generally does not arise until the movant

has brought the motion to the court's attention. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—

Amarillo 2001, orig. proceeding). Mandamus will not lie unless the movant establishes that he

has done so and that the trial court then fails or refuses to rule within a reasonable time. Id. Castro In re Castro Page 2 has not provided this Court with a copy of the motion he contends was not ruled on by the trial

court and provides no information regarding when it might have been filed or brought to the trial

court’s attention. Even if the motion had been presented to the trial court, we cannot compel the

trial court to rule on Castro's motion in a particular way as Castro requested. See State ex rel.

Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987).

Accordingly, Castro’s petition for a writ of mandamus to compel the trial court to rule on

Castro’s “Motion for an Out of Time Time Reduction or Modification of Original Plea Bargain

Agreement.” is denied. 1

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Rose 2 Mandamus denied Opinion delivered and filed August 11, 2021 Do not publish [OT06]

1 Castro also asks that we reverse his conviction and remand for a new punishment. Should Castro decide we misconstrued the purpose of his “brief,” and intends the document we received to be a notice of appeal, it is far too late to invoke this Court’s jurisdiction. Any appeal now would be dismissed for want of jurisdiction. 2 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003. In re Castro Page 3