Opinion
13-23-00589-CR
12-21-2023
IN RE JOSEPH DIRUZZO
Do not publish. Tex.R.App.P. 47.2 (b).
On Petition for Writ of Mandamus.
Before Justices Longoria, Silva, and Peña
MEMORANDUM OPINION
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).
Relator Joseph Diruzzo filed a pro se petition for writ of mandamus through which he seeks to compel the trial court "to convene a hearing as commanded by the Texas Court of Criminal Appeals and dismiss the case for lack of subject matter jurisdiction." Relator's petition is premised on a ruling from the Texas Court of Criminal Appeals regarding relator's direct appeal from his conviction for illegally practicing medicine. See Diruzzo v. State, 581 S.W.3d 788, 790 & n.1 (Tex. Crim. App. 2019) (remanding to the trial court for further proceedings and discussing the appropriate procedure to address a motion to quash that is predicated on a claim that the district court lacked subject matter jurisdiction over a misdemeanor offense). We note that the court of criminal appeals' opinion did not require the trial court to dismiss the case. See id. Relator has not filed either an appendix or a record in support of his contentions in this original proceeding.
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. 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 State ex rel. Young, 236 S.W.3d at 210; 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."). In addition to other requirements, the relator must include a statement of facts and 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 (governing the form and contents for a petition). Further, the relator must file an appendix and 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 relief. See In re Meza, 611 S.W.3d at 388; In re Harris, 491 S.W.3d at 334. Accordingly, we deny the petition for writ of mandamus.