Opinion
04-23-00400-CR
06-12-2024
EX PARTE Jose Gerardo ORTIZ-MORENO
DO NOT PUBLISH
From the County Court, Kinney County, Texas Trial Court No. 13440CR Honorable Susan D. Reed, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
PER CURIAM.
Appellant, Jose Gerardo Ortiz-Moreno, appeals from the denial of his pretrial application for writ of habeas corpus. We dismiss the appeal for want of jurisdiction, treat the appeal as a petition for writ of mandamus at Ortiz-Moreno's request, and deny his mandamus petition.
Background
Ortiz-Moreno, a noncitizen, was arrested under Operation Lone Star and charged with the misdemeanor offense of criminal trespass. On January 26, 2023, Ortiz-Moreno filed an application for writ of habeas corpus seeking dismissal of the criminal trespass charge because, he alleged: (1) the State engaged in selective prosecution, in violation of his right to equal protection, when it decided to charge him, and (2) the State facilitated his removal from the country, thereby violating his right to trial and his right to counsel. On March 25, 2023, the trial court issued an order stating, "the Application is denied without issuing writ." Ortiz-Moreno timely filed a notice of appeal.
On April 24, 2023, and again on April 9, 2024, we issued orders notifying Ortiz-Moreno that it appears we lack jurisdiction over this appeal and that we would dismiss this appeal unless he filed a response showing that we have jurisdiction.
Ortiz-Moreno filed a response to our first order on April 26, 2023, but did not file a response to our second order. In his response, Ortiz-Moreno argues that the trial court ruled on the merits of his application and that we have jurisdiction over his appeal. Ortiz-Moreno also requests, in the event we determine that we lack jurisdiction over his appeal, that we treat his appeal as a petition for writ of mandamus.
Jurisdiction
There is no right to an appeal when a trial court refuses to issue a habeas writ or dismisses or denies a habeas application without ruling on the merits of the applicant's claims. See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008); Ex parte Molina Valencia, - S.W.3d -, No. 04-23-01044-CR, 2024 WL 1642923, at *1 (Tex. App.-San Antonio April 17, 2024, no pet. h.) (en banc). "Thus, where the record does not show that the trial court ruled on the merits of the application for writ of habeas corpus, we lack jurisdiction over the appeal." Molina Valencia, 2024 WL 1642923, at *1 (quoting Ex parte Blunston, No. 04-12-00657-CV, 2013 WL 3874471, at *1 (Tex. App.-San Antonio July 24, 2013, no pet.) (mem. op., not designated for publication); citing Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.-Dallas 2001, pet. ref'd); Ex parte Miller, 931 S.W.2d 724, 725 (Tex. App.-Austin 1996, no pet.)).
Here, the trial court did not issue a writ, and the trial court's order simply states that "the Application is denied without issuing writ"-language we have previously held does not suggest a ruling on the merits. E.g., id. at *2 (citing In re Martinez-Jimenez, No. 04-23-00547-CR, 2023 WL 7005866, at *2 (Tex. App.-San Antonio Oct. 25, 2023, orig. proceeding) (mem. op., not designated for publication); In re Lara Belmontes, 675 S.W.3d 113, 115 (Tex. App.-San Antonio 2023, orig. proceeding)). Further, no reporter's record has been filed, and nothing in the record shows that the trial court held any hearings related to Ortiz-Moreno's habeas application or the merits thereof or otherwise considered any evidence related to the application.
Consequently, nothing in our review of the entire record reflects that the trial court considered or expressed an opinion on the merits of Ortiz-Moreno's habeas claims. See id.; Ex parte Garcia, 683 S.W.3d 467, 473 (Tex. App.-San Antonio 2023, no pet.) (en banc). We therefore conclude that the trial court did not rule on the merits of Ortiz-Moreno's habeas application, and we lack jurisdiction to review his appeal. See Villanueva, 252 S.W.3d at 394; Molina Valencia, 2024 WL 1642923, at *2; Garcia, 683 S.W.3d at 473.
Ortiz-Moreno argues in both his appellate brief and in his April 26, 2023 response to our April 24, 2023 order that we "should infer" that the trial judge ruled on the merits in this case based on how the trial judge "has handled identical claims raised in other cases." We, however, "may not consider factual assertions that are outside the record." Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); see Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996) ("It is a long standing principle that we cannot review contentions which depend upon factual assertions outside of the record."). Nor may we consider evidence from the record of another case, unless we take judicial notice of our own records from "the same or related proceedings involving same or nearly same parties." Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987). Therefore, we may not consider the records from other cases in determining whether the trial court ruled on the merits of Ortiz-Moreno's habeas application in this case.
Request to Treat Habeas Appeal as a Mandamus Petition
We may, in certain circumstances, treat an appeal as a petition for writ of mandamus, if specifically requested to do so by the appellant. See Molina Valencia, 2024 WL 1642923, at *2. As stated above, Ortiz-Moreno specifically requests that we construe his appeal as a mandamus petition if we determine the trial court's order is not appealable. We will therefore treat Ortiz-Moreno's appeal as a petition for writ of mandamus.
Ortiz-Moreno does not raise any issues in his appellate brief related to the claim in his application for pretrial writ of habeas corpus that the State violated his right to trial and his right to counsel by facilitating his removal from the country; his brief raises issues exclusively related to his equal protection claim. Moreover, Ortiz-Moreno specifically states, in his brief, that "[t]he instant application for a stay [sic], . . . is based only on the equal-protection claim." We therefore construe his appeal as a petition for writ of mandamus requesting mandamus relief solely pertaining to his selective-prosecution equal protection claim.
After considering the petition and the record, we deny Ortiz-Moreno's request for mandamus relief. See id. at *2-4.
Conclusion
Because the trial court's denial of Ortiz-Moreno's habeas application was not based on the merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal for want of jurisdiction and, at Ortiz-Moreno's request, treat his appeal as a petition for writ of mandamus. Finally, we deny without prejudice Ortiz-Moreno's petition for writ of mandamus. See Tex. R. App. P. 52.8(a). Any pending motions are dismissed as moot.