In Re Francisco De Aquino Perez v. the State of Texas ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00196-CR
IN RE Francisco De Aquino PEREZ
Original Proceeding 1
PER CURIAM
Sitting: Irene Rios, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: April 26, 2023
PETITION FOR WRIT OF MANDAMUS DISMISSED IN PART AND DENIED IN PART
On March 6, 2023, relator filed a petition for writ of mandamus. Relator also filed a motion
for stay of the underlying proceeding pending final resolution of the petition for writ of mandamus,
which this court granted in part on March 8, 2023.
Relator’s mandamus petition argues the trial court has failed to rule on his application for
writ of habeas corpus and his motion to urge. 2 For mandamus relief in a criminal case, a relator
has the burden to show the trial court violated a ministerial duty and there is no adequate remedy
at law. See State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210
1
This proceeding arises out of Cause No. 13323CR, styled State of Texas v. Francisco De Aquino Perez, pending in
the County Court, Kinney County, Texas, the Honorable Todd Alexander Blomerth and the Honorable Susan D. Reed
presiding.
2
Relator’s motion to urge seeks a ruling from the trial court on his habeas application prior to any in-person settings
and requests “that his mandatory in-person presence be waived until the State has made it clear it can satisfy its
burden.”
04-23-00196-CR
(Tex. Crim. App. 2007) (orig. proceeding). A trial court has a ministerial duty to rule on a properly
filed and timely presented motion. See id. However, a relator has the burden of providing this court
with a sufficient record. See TEX. R. APP. P. 52.7(a)(1). A relator must provide the court of appeals
with a record showing the motion at issue was properly filed, the trial court was made aware of
the motion, and the trial court has refused to rule on the motion or that the trial court has not ruled
on the motion after an unreasonable time period. See In re Mendoza, 131 S.W.3d 167, 167-68
(Tex. App.—San Antonio 2004, orig. proceeding); see also In re Hearn, 137 S.W.3d 681, 685
(Tex. App.—San Antonio 2004, orig. proceeding) (“After these prerequisites are met, we have
jurisdiction to direct the trial court to consider and rule on pending matters; however, we may not
tell the trial court what ruling it should make.”).
Here, the record contains file-stamped copies of relator’s application for writ of habeas
corpus and motion to urge. Additionally, the record provides evidence of relator’s efforts to bring
his filings to the attention of the trial court. We note, however, that during the pendency of this
original proceeding, the trial court ruled on relator’s application for writ of habeas corpus. Because
relator has received a ruling on his application for writ of habeas corpus, relief requested in his
mandamus petition, this issue is now moot. See In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim.
App. 2014) (orig. proceeding) (holding mandamus moot where relator received relief sought).
Although the trial court ruled on relator’s habeas application, the mandamus record does
not show that the trial court has ruled on his motion to urge. Nevertheless, relator did not provide
this court with a record or authority indicating that the trial court has refused to rule on his motion
to urge or that he has been waiting for a ruling for an unreasonable time period. See Mendoza, 131
S.W.3d at 167-68; Hearn, 137 S.W.3d at 685-86.
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04-23-00196-CR
Based on the record before us, relator has not satisfied his mandamus burden. Accordingly,
the petition for writ of mandamus is dismissed in part and denied in part. See TEX. R. APP. P.
52.8(a). The stay imposed on March 8, 2023 is lifted.
PER CURIAM
DO NOT PUBLISH
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