Opinion
NUMBER 13-14-00443-CR
10-10-2014
IN RE HECTOR CAVAZOS JR.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion Per Curiam
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."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Hector Cavazos Jr., proceeding pro se, has filed a petition for writ of mandamus seeking to compel the trial court to order relator's former criminal defense counsel to turn over relator's case files. This Court previously affirmed relator's conviction on direct appeal of two counts of aggravated sexual assault of a child, a first- degree felony. See Cavazos v. State, No. 13-10-00525-CR, 2011 WL 6917580, at *1 (Tex. App.—Corpus Christi Dec. 29, 2011, no pet.) (mem. op. not designated for publication).
Relator also filed a motion for leave to file the petition for writ of mandamus. Relator's motion for leave to file his petition for writ of mandamus is dismissed as moot. The Texas Rules of Appellate Procedure no longer require the relator to file a motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt.
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To be entitled to mandamus relief, relator 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 Jud. Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. See id. It is relator'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, relator 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 relator 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).
The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not met his burden to obtain relief. First, the petition for writ of mandamus fails to comply with the Texas Rules of Appellate Procedure. See generally TEX. R. APP. P. 52.3. Second, relator has not demonstrated that respondent expressly refused to rule on relator's motion or that an unreasonable amount of time has passed since the motion was 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 App., 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). Accordingly, the petition for writ of mandamus is DENIED. See State ex rel. Young, 236 S.W.3d at 210.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 10th day of October, 2014.