Opinion
13-23-00496-CR
11-21-2023
IN RE JOHN D. PELKO
Do not publish. Tex.R.App.P. 47.2 (b).
On Petition for Writ of Mandamus.
Before Justices Benavides, Longoria, and Tijerina
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).
Pro se relator John D. Pelko filed a petition for writ of mandamus seeking to compel the trial court to (1) confirm receipt of relator's motion for new trial, and (2) grant relator's motion for new trial.
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; 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. Further, the relator must file a record sufficient to support the claim for mandamus relief. See id. R. 52.7(a); In re Pena, 619 S.W.3d 837, 839 (Tex. App.-Houston [14th Dist.] 2021, orig. proceeding); In re Rangel, 570 S.W.3d 968, 969 (Tex. App.-Waco 2019, orig. proceeding).
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. Accordingly, we deny the petition for writ of mandamus.