in Re Jose Arellano ( 2023 )

NUMBER 13-23-00044-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE JOSE ARELLANO
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Peña
Memorandum Opinion by Justice Peña1
Relator Jose Arellano filed a pro se petition for writ of mandamus in the above-
referenced cause through which he asserts that the trial court has abused its discretion
1 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.
47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (explaining the
differences between opinions and memorandum opinions).
because it refuses to rule on relator’s pending motions, or, stated otherwise, has
“refuse[d] to exercise power it is required to exercise.”2
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 id.; 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.”).
To obtain mandamus relief for the trial court’s refusal to rule on a motion, a relator
must establish: (1) the motion was properly filed and has been pending for a reasonable
2 Relator’s petition for writ of mandamus arises from trial court cause number 06-CR-770-E in the
357th District Court of Cameron County, Texas. We previously affirmed relator’s conviction in his direct
appeal from that cause number. See Arellano v. State, No. 13–07–00356–CR, 2009 WL 942896, at *1 (Tex.
App.—Corpus Christi–Edinburg Jan. 8, 2009, pet. ref’d) (mem. op., not designated for publication) (affirming
appellant’s judgment of conviction for three counts of intoxication manslaughter and one count of
intoxication assault); see also Arellano v. State, No. 13-18-00672-CR, 2019 WL 303050, at *1 (Tex. App.—
Corpus Christi–Edinburg Jan. 24, 2019, no pet.) (mem. op., not designated for publication) (dismissing an
appeal for want of jurisdiction where appellant contended merely that “the trial court was ‘indifferent’ to his
request for DNA testing”); In re Arellano, No. 13-18-00248-CR, 2018 WL 2148761, at *1 (Tex. App.—
Corpus Christi–Edinburg May 9, 2018, orig. proceeding) (mem. op., not designated for publication) (denying
mandamus relief regarding relator’s contention that the trial court’s nunc pro tunc judgment was void).
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time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to
rule. In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.—Corpus
Christi–Edinburg 2014, orig. proceeding); In re Craig, 426 S.W.3d 106, 106–07 (Tex.
App.—Houston [1st Dist.] 2012, orig. proceeding) (per curiam); In re Chavez, 62 S.W.3d
225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). Stated otherwise, a relator must
establish that the trial court: (1) had a legal duty to rule on the motion; (2) was asked to
rule on the motion; and (3) failed or refused to rule on the motion within a reasonable
time. In re Pete, 589 S.W.3d 320, 321 (Tex. App.—Houston [14th Dist.] 2019, orig.
proceeding) (per curiam). The relator must show that the trial court received, was aware
of, and was asked to rule on the motion. In re Blakeney, 254 S.W.3d 659, 661 (Tex.
App.—Texarkana 2008, orig. proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex.
App.—Amarillo 2003, orig. proceeding). In this regard, merely filing a document with the
district clerk neither imputes the clerk’s knowledge of the filing to the trial court nor
equates to a request that the trial court rule on the motion. In re Pete, 589 S.W.3d at 322;
In re Craig, 426 S.W.3d at 107.
Whether a reasonable time for the trial court to act has lapsed is dependent upon
the circumstances of each case. See In re Blakeney, 254 S.W.3d at 662; In re Chavez,
62 S.W.3d at 228. The test for determining what time period is reasonable is not subject
to exact formulation, and no “bright line” separates a reasonable time period from an
unreasonable one. See In re Mesa Petroleum Partners, LP, 538 S.W.3d 153, 157 (Tex.
App.—El Paso 2017, orig. proceeding); In re Greater McAllen Star Props., Inc., 444
S.W.3d at 748; In re Blakeney, 254 S.W.3d at 661; In re Chavez, 62 S.W.3d at 228. We
examine a “myriad” of criteria, including the trial court’s actual knowledge of the motion,
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its overt refusal to act, the state of the court’s docket, and the existence of other judicial
and administrative matters which must be addressed first. See In re Greater McAllen Star
Props., Inc., 444 S.W.3d at 748–49; In re Blakeney, 254 S.W.3d at 661; In re Chavez, 62
S.W.3d at 228–29.
The Court, having examined and fully considered the petition for writ of mandamus,
the record provided, and the applicable law, is of the opinion that relator has not met his
burden to obtain relief. Here, relator has provided this Court with copies of the relevant
motions which are at issue in this original proceeding, but the motions are not file-
stamped, and relator has not included any documentation to show that the trial court
received, was aware of, and was asked but refused to rule on the motions. Accordingly,
relator has not established the right to mandamus relief. We deny the petition for writ of
mandamus.
L. ARON PEÑA JR.
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
6th day of February, 2023.
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