in Re Domingo Vasquez Jr. ( 2016 )

NUMBERS 13-16-00445-CR & 13-16-00446-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE DOMINGO VASQUEZ JR.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion Per Curiam1
Relator Domingo Vasquez Jr., proceeding pro se, filed a petition for writ of
mandamus in the above causes on August 10, 2016, seeking to compel the trial court to
rule on and grant relator’s motion for nunc pro tunc judgment.
To be entitled to mandamus relief, the relator must show: (1) that he has no
adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re
State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If
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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
the relator fails to meet both of these requirements, then the petition for writ of mandamus
should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236
S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
A remedy at law, though it technically exists, "may nevertheless be so uncertain,
tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed
inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648–
49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled must be a
ministerial act that does not involve a discretionary or judicial decision. State ex rel.
Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the relator can
show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A
clear right to relief is shown when the facts and circumstances dictate but one rational
decision "under unequivocal, well-settled (i.e., from extant statutory, constitutional, or
case law sources), and clearly controlling legal principles." Bowen v. Carnes, 343 S.W.3d
805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks, 391 S.W.3d at 122.
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)
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(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
mandamus relief for the respondent’s alleged failure to rule on the motion. See State ex
rel. Young, 236 S.W.3d at 210. There is nothing in the limited record before this Court to
establish that relator’s pleadings were presented to the respondent and the respondent
refused to act. See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002,
orig. proceeding). Further, to the extent that relator requests that we compel the trial court
to grant the motion for nunc pro tunc judgment, we note that while we have jurisdiction to
direct the trial court to rule on a motion, we may not tell the court what that decision should
be. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding).
Accordingly, relator’s petition for writ of mandamus in each of these causes is denied.
See TEX. R. APP. P. 52.8(a).
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of September, 2016.
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